Category: reason

Harris County District Attorney Kim Ogg swept into office in 2016, promising important criminal justice reforms like prioritizing important crimes and easing up on pretrial detention and high bail in her Texas jurisdiction. Her campaign site advertised her as “Texas’ most progressive District Attorney.”

“We’re going to have a system with fair bail; we’re going to have a system that doesn’t oppress the poor; we’re going to have a system that goes after the rapists and the robbers,” she said in her victory speech in 2016. She was reelected in 2020.

But right now, Ogg is hellbent on trying to prosecute a Houston doctor who vaccinated 10 people against COVID-19 rather than let doses go to waste. And even though a judge has already essentially laughed her out of the court, she’s taking the case to a grand jury.

Hasan Gokal, a Pakistani immigrant, briefly became national news in January when media outlets reported he had been fired for “stealing” a vial of COVID-19 vaccine doses and giving it to friends and family.

“He abused his position to place his friends and family in line in front of people who had gone through the lawful process to be there,” Ogg said in January.

But that characterization of what happened is disputed, and Harris County Judge Franklin Bynum has already tossed the case out for lack of probable cause and rebuked Ogg’s office for attempting to “criminalize a doctor’s documented administration of vaccine doses during a public health emergency.”

It turned out what really happened with Gokal is the problem we’ve been seeing play out across the country—medical providers having to hustle to find people to inject before these vaccines expire.

The New York Times Wednesday detailed the timeline of Gokal’s behavior, documenting not a thief looking to jump his wife and friends to the front of the line, but rather a desperate doctor who had six hours to use 10 doses of the Moderna vaccine before they expired.

It all happened on December 29, when according to Gokal’s account to the Times, not enough people showed up for vaccinations at an event in the Houston suburb of Humble because it had not been well-publicized. A new vial had been opened toward the end of the event and only one person was injected. That left 10 potential vaccinations that could go to waste.

Instead of letting that happen, Gokal informed the Harris County health officials in charge of the event that he was going to find people to inject. County officials knew full well what he was doing.

In the end, Gokal found several elderly people and those in high-risk categories who weren’t yet approved for vaccinations but most certainly would be soon. The last to be injected was Gokal’s own wife, who was actually eligible for the vaccine because of a serious lung condition. He told the Times he gave her the last dose 15 minutes before the vaccine would have expired.

He says all of these vaccinations were fully documented and submitted to Harris County Public Health. He was not concealing what he was doing at all. He was simply trying to avoid vaccine waste.

Nevertheless, days later, he was fired. Here’s what he says he was told:

The officials maintained that he had violated protocol and should have returned the remaining doses to the office or thrown them away, the doctor recalled. He also said that one of the officials startled him by questioning the lack of “equity” among those he had vaccinated.

“Are you suggesting that there were too many Indian names in that group?” Dr. Gokal said he asked.

Exactly, he said he was told.

Two weeks later, Ogg announced that she was going to charge Gokal for theft. He says nobody from her office even contacted him before announcing the charges.

Since the incident, the Times notes, the Texas Medical Association and the Harris County Medical Society announced support for doctors who skip vaccination protocols to avoid the problem of doses going to waste.

Ogg’s office is still bringing the case before a grand jury to see if it’ll indict Gokal.

If what Gokal’s claiming is true—that he was told doses should be allowed to expire rather than be injected—anybody who told him this and anybody who thinks this way needs to be ejected from any sort of position of authority in the vaccination process.

By all means, focus on those who are at the greatest risk of spread or those who would suffer the most or are most likely to die if they’re infected. But no moral or ethical goal is served when any dose of a vaccine goes to waste. Nobody’s version of “equity” should result in fewer people being vaccinated against a deadly disease out of a comically cruel concept of fairness.

As for Ogg, she still has a tweet up sharing an initial news report from January that characterizes Gokal’s behavior as “stealing,” despite all the information that has come out since then. It will be up to the grand jury, apparently, to reject this case.

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The Biden administration has rolled back a Trump-era regulation meant to protect politically disfavored businesses, like gun manufacturers and cryptocurrency exchanges, from being categorically denied banking services. 

In a statement released January 28, the Office of the Comptroller of the Currency (OCC) said that the move will allow the new comptroller to review the rule and public comments the office had received. The OCC still suggests that banks not terminate broad categories of customers without assessing individual risk.

The Fair Access Rule was established in the last weeks of the Trump administration and was set to go into effect on April 1. It stated that “banks should conduct risk assessment of individual customers, rather than make broad-based decisions affecting whole categories or classes of customers when provisioning access to services, capital, and credit.”

This regulation was meant to shield politically unpopular but otherwise legal companies from banking discrimination, following Operation Chokepoint, a program initiated by President Barack Obama’s Justice Department. While ostensibly designed to combat fraud, in practice, Reason writers have observed, it empowered the government to target unfavorable industries, such as payday lending and pornography, by “coercing private businesses in an attempt to centrally engineer the American marketplace based on its own politically biased moral judgments.”

“Officials at both the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) threatened banks with regulatory pressure if they did not bend to their will,” wrote former U.S. Attorney Frank Keating for The Hill. “Gun and ammunition dealers, payday lenders and other businesses operating legally suddenly found banks terminating their accounts with little explanation aside from ‘regulatory pressure.'”

In 2017, Trump’s Department of Justice ended the program, calling it “misguided,” stating that “law-abiding businesses should not be targeted simply for operating in an industry that a particular administration might disfavor.”

Trump’s Fair Access Rule went a step further by prohibiting financial institutions from discriminating against entire industries. Andrea O’Sullivan, Director of the Center for Technology and Innovation at the James Madison Institute, has argued here at Reason that Trump’s rule would’ve protected unfairly targeted businesses.

“The largest banks in the country—those with more than $100 billion in assets—would be prohibited from red-lining politically disfavored industries just as they are prohibited from red-lining politically oppressed populations.” she wrote. “Rather, a gun manufacturer or pornography company or payday lender must be evaluated on the terms of their individual creditworthiness.”

Not every free market scholar agrees with this assessment. John Berlau, a senior fellow at the Competitive Enterprise Institute, tells Reason that the rule’s broad wording would do more than merely prevent large banks from discriminating against unpopular businesses. It would also force small banks into relationships with businesses they are not equipped to handle.  

“Under this rule,” says Berlau, “a digital bank could not say, ‘We’re not lending to paper companies [a company without operations that exists exclusively for a financial reason] because it’s not our business model.'”

Although it has been reported that the regulation would only affect banks with $100 billion in assets or more, that is not actually what the rule says. A small bank would be covered by the rule if it were to charge a higher cost for a loan because a customer is in an industry that the bank does not typically handle. A smaller bank could also be affected if it refuses a loan to that customer, and that rejection causes a competing bank to raise its price for a loan to that same customer.

“Vague terms like that can almost always be stretched to apply to just about any market participant,” Berlau says.  

As an example, Berlau cites the Bird-In-Hand Bank of Pennsylvania, a small rural bank that specializes in providing loans to the Amish community. 

“If, for whatever reason, it didn’t serve a new line of business or decided to charge more interest,” Berlau says, “it could have conceivably raised the price [of a loan] because it offered an option where there are limited options.”

Berlau argues that preventing banks from discriminating against certain industries violates their right to free association and would hurt niche banks that specialize in specific industries, like farming, industrial lending, or financial technology, forcing them to lend to businesses with which they are less familiar. 

Reason has left several messages with the OCC’s public information office requesting a timeframe for the office to complete its review of the Fair Access Rule. The OCC has not yet responded.

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The Chicago Sun-Times has this headline over an AP story (the headline appears to be from the Sun-Times, not the AP):

Gina Carano fired from ‘Mandalorian’ after anti-Semitic social media post

The story begins:

Lucasfilm says Gina Carano is no longer a part of “The Mandalorian” cast after many online called for her firing over a social media post that likened the experience of Jews during the Holocaust to the U.S. political climate.

A spokesperson with the production company said in a statement on Wednesday that Carano is not currently employed by Lucasfilm with “no plans for her to be in the future.”

“Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable,” the statement read.

Carano fell under heavy criticism after she posted that “Jews were beaten in the streets, not by Nazi soldiers but by their neighbors…. even by children.”

The actor continued to say, “Because history is edited, most people today don’t realize that to get to the point where Nazi soldiers could easily round up thousands of Jews, the government first made their own neighbors hate them simply for being Jews. How is that any different from hating someone for their political views?”

USA Today likewise labels the story “anti-Semitic.”

I don’t buy it. I think overheated analogies to Nazism are rarely sound, whether they are analogizing the treatment of American conservatives to the treatment of German Jews, calling American politicians Hitler, or, in one memorable e-mail I got a few months ago, “We are not Jews living in Germany in the 1930s, Blacks in America are, every day is like Kristallnacht.” (On Kristallnacht, 90 Jews were murdered because they were Jewish, out of a population of 1 million in Germany and Austria, more than 1000 synagogues were burned, and there was much more as well; thankfully, that isn’t happening any day, much less every day, to any group in America.)

But this is not anti-Semitism, under any established or sensible definition of anti-Semitism. It isn’t “denigrating [Jews] based on their cultural and religious identities.” It isn’t expressing hostility to Jews because they are Jewish. Indeed, the premise of the analogy is that Jews were wrongly hated, and that, she argues, conservatives are analogously wrongly hated today.

A Newsweek story mentions that Carano was under fire in December for posting this meme that “espouses the anti-semitic consp[i]racy theory that a cabal of rich Jews run the world”:

https://twitter.com/IM_Ramble/status/1359598984428355584/photo/1

But while this was apparently based on an apparently anti-Semitic London mural, it’s far from clear that she knew that backstory, especially given that this version (which is different than the original) doesn’t seem to use any obviously Jewish faces. These seem to me like generic elderly white rich men, who don’t even necessarily seem to be bankers as such, as opposed to just powerful businessmen. (The one guy on the right seems more identifiably Jewish to me, though who knows, but the others look like any old white guy in a suit.) Someone not up on the fine points of such debates (whether in England or as to the image being worn by some in the March on Washington or passed along by Ice Cube) can easily pass it along without perceiving it as being about Jews. And in any event, the anti-Semitism allegations in the USA Today, Chicago Sun-Times, and other news stories focused on the Nazis-demonizing-Jews post, not the mural post.

Let me return to my first point: It’s bad to dilute the significance of the Holocaust in the public mind by analogizing all misbehavior to the Nazis’ treatment of Jews; it both wrongly minimizes what the Nazis did, and it’s not really honest. But it seems even worse to dilute the significance of the label “anti-Semitism,” by labeling such faulty analogies anti-Semitic.

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Gina Carano is a former MMA fighter, outspoken Republican, and co-star of Disney’s The Mandalorian. On Wednesday, Lucasfilm—the Disney-owned studio that produces The Mandalorian and other Star Wars properties—denounced her social media posts and said there were no plans to include her in any future projects.

“Gina Carano is not currently employed by Lucasfilm and there are no plans for her to be in the future,” said Lucasfilm in a statement. “Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.”

This statement apparently referenced a recent Instagram post of Carano’s that did indeed contain a tortured and offensively hyperbolic analogy. Carano did not “denigrate people based on their cultural and religious identity,” however. And while Disney is within its rights to cease working with an actress who occasionally makes provocative right-wing comments, it’s impossible to ignore the double standard at play here, since similarly provocative statements from liberal Star Wars cast members have not resulted in any sanction.

Here is what Carano wrote on Instagram:

Jews were beaten in the streets, not by Nazi soldiers but by their neighbors…even by children. Because history is edited, most people today don’t realize that to get to the point where Nazi soldiers could easily round up thousands of Jews, the government first made their own neighbors hate them simply for being Jews. How is that any different from hating someone for their political views.

This was a very flawed comment: For one thing, Nazi soldiers absolutely beat Jews, in the streets and elsewhere. Carano is right that part of the Nazis’ agenda was to persuade German citizens to hate and fear their Jewish neighbors—but what happened in 1930s Germany is not remotely similar to what is happening today in the U.S. The Nazi Party’s demonization of the Jewish people led to genocide. The media’s demonization of the Republican Party—which is not directly referenced in her post, but it’s assumed that’s what she meant—is obviously not comparable to the Holocaust.

That said, Disney is wrong to say that Carano denigrated Jewish people, or that she is “abhorrent” for making such a comparison. She’s a celebrity with an obnoxious political opinion, which is not exactly a rare animal.

And that’s the bigger issue with Disney’s decision to drop Carano: hypocrisy. If the studio doesn’t want to work with actors and actresses who make over-the-top Nazi comparisons, it has a major problem on its hands: Pedro Pascal, the star and eponymous character of The Mandalorian, once sent a tweet likening Trump’s immigration policies to Nazi concentration camps.

This is not so surprising: Hollywood is chock full of people with quirky political views making dramatic analogies. As Bloomberg‘s Eli Lake pointed out, Sean Penn is an apologist for former Venezuelan dictator Hugo Chavez. Benicio del Toro dedicated an award to the memory of murderous Cuban revolutionary Che Guevara. Nick Cannon praised Nation of Islam leader Louis Farrakhan, a repugnant anti-Semite. (ViacomCBS fired Cannon for his remarks, but rehired him after he apologized.)

Carano has occasionally made other controversial comments: She has criticized universal masking and suggested that combating voter fraud should be a major part of the Republican agenda. Disney apparently abandoned plans to give Carano her own show following one such post back in November.

Some conservatives have called for a boycott of Disney following its decision. While I’m not the biggest fan of boycotts, it strikes me as reasonable for conservatives to be upset about this double standard. Why does Disney care more about Carano’s dumb but relatively inconsequential Instagram post than it does about China’s ethnic cleansing of the Uighur Muslims? If the company thinks “denigrating people based on their cultural and religious identities” is abhorrent, then perhaps it shouldn’t be working so closely with the Chinese Communist Party, which earned a “special thanks” in the credits of Mulan.

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I blogged in November about this case:

Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox’s coverage of Avenatti’s Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere.

Since then, the case has been removed by defendants to federal district court on the grounds that the plaintiffs and defendants are citizens of different states; Avenatti, though, is trying to get it sent back to Delaware state court, by joining a defendant who is a California citizen, like Avenatti. You can see the motions linked here.

Of course, motions to remand are almost never the funner part. But just this morning, the court announced that Third Circuit Judge Stephanos Bibas has been appointed to sit by designation on the case. (Circuit Judges sometimes sit by designation in district court, which is often viewed as an interesting and useful break from their normal tasks, one that gives them more of a perspective on the district judges whose decisions they have to review.)

Judge Bibas is a former Supreme Court clerk, federal prosecutor, and University of Pennsylvania law professor, indeed one of the leading conservative criminal procedure scholars of his generation. His opinions thus tend to be unusually scholarly; not everyone likes opinions like that, but I certainly do. He is also an excellent writer; so unless the case is promptly remanded, I would expect especially interesting opinions now that he’s at the helm. (Indeed, maybe he can make even a motion-to-remand opinion interesting.) Will keep you folks posted.

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