Category: reason

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

New on the Bound By Oath podcast: the origins of Section 1983—originally known as Section 1 of the Ku Klux Klan Act of 1871.

New on the Short Circuit podcast: Rudy Giuliani is in hot water. And we talk about the undertalked about Reception Clause.

• In which the D.C. Circuit determines that the Army Corps of Engineers acted unlawfully in granting an easement to the Dakota Access Pipeline underneath Lake Oahe but that we shouldn’t be too hasty in doing anything about that unlawfulness.
• The U.S. can prosecute crimes committed on seagoing vessels that sail under the American flag, but what about “stateless” vessels that fly no flag at all? It can prosecute crimes there too, says the First Circuit, which is bad news for this defendant, his stateless boat, and his honkload of stateless cocaine.
• Some legal commentators would have you believe that it’s never RICO, but this First Circuit opinion demonstrates that if the prosecution introduces copious evidence of your organization’s decade-long work as a “mega-gang,” then it is probably RICO.
• In criminal statutes, does the word “willfully” mean “on purpose” or “with bad intent”? Third Circuit: Yes.
• Norfolk, Va. police arrest two men after a search of their car uncovers 300+ grams of fentanyl, four cell phones, a loaded gun, and $1,800 in cash. Though the men admit to owning the other items, neither claim ownership of the fentanyl. Fourth Circuit: The men clearly knew each other and were acting suspiciously, so it was reasonable for the cops to assume that they were engaged in a common enterprise and the fentanyl belonged to both.
• Citizen of El Salvador sought to avoid deportation on the ground he faces persecution as a former member of the MS-13 gang. The Board of Immigration Appeals denied relief, reasoning that the social group of “former Salvadoran MS-13 members” is too amorphous to warrant such relief. Fourth Circuit: Even assuming that decision is entitled to Chevron deference (a question we need not decide), the Board’s decision is unreasonable and cannot stand. The group is hardly amorphous, as it’s limited to former gang members. Dissent: Chevron.
• Woman visiting an inmate is strip searched, forced to remove her tampon for inspection, and made to “squat and cough.” Fourth Amendment violation? Fourth Circuit: Qualified immunity. The guards had reasonable suspicion to believe that she was attempting to pass the inmate contraband given rumors that the inmate was smuggling drugs and that a security guard said he saw the woman unbutton her waistband an hour into her visit. Dissent: This was significantly more intrusive than a standard strip search—should’ve gone to a jury.
• Is using someone else’s Social Security number a crime involving moral turpitude? Fifth Circuit (further entrenching a circuit split): Sure is. Dishonesty is an essential element of the crime, and it is thus turpitudinous.
• A Houston peroxide manufacturer discovered that its hurricane preparedness plan was inadequate when Harvey pummeled Texas and the facility’s materials blew up. Neighbors sue, and the trial court gives the okay for a class action. Fifth Circuit: Not so fast. When expert opinions are used to certify a class, the court must first ensure that those opinions would be admissible at trial under Daubert.
• Tennessee couple seeks bankruptcy protection, claiming less than $6,000 in assets. Zoinks! They actually control millions through a complex web of family trusts and shell companies. And the couple’s largest creditor is having a bad time at the Sixth Circuit. One decision says the creditor can’t pierce the corporate veil in reverse (i.e., get assets from some of those entities to satisfy the couple’s debts). And another won’t allow the creditor to pursue a malpractice claim against the couple’s bankruptcy attorneys.
• Back in November, a panel of the Sixth Circuit said that a district court could not deny a COVID-related request for compassionate release with a “barebones” form order. But that panel, says a different panel of the Sixth Circuit, was wrong, and one-sentence orders denying compassionate release are totally cool. (In dissent, Judge Moore, who wrote the initial panel opinion, suggests they got things right the first time.)
• Redacted opinions aren’t too common, but here’s one from the Sixth Circuit about a sentence reduction for an inmate who assisted police after hearing another inmate say, “[I]f you ever want to get rid of a body, hogs is the way to go.”
• A home healthcare agency declines to pay nurses for the overtime they worked because it “couldn’t make money” if it did. She sues, wins with a settlement. The district court orders attorneys’ fees, but then reduces them to 35% of the total settlement amount because that’s what judges in that district “typically approve.” Sixth Circuit: That’s not a good reason. Grant the fees as requested, add some for this appeal, and please don’t appeal again.
• Sixth Circuit: There’s not a lot that will void the absolute immunity that prosecutors normally enjoy, but threatening to charge someone with double murder unless they falsely implicate someone else (who served 41 years before being released) will surely do it.
• This Ponzi scheme began—like so many others—when an investment manager decided to paper over a loss rather than fess up to his investors. He invented a fictional investment in an Australian hedge fund, and he used funds from new investors to pay the old. The scheme ran for over seven years before it finally came crashing down, at which point the district court sentenced the gentleman to over seven years in prison. Seventh Circuit: Affirmed.
• When an elected official blocks someone on Twitter, do they violate the First Amendment? Eighth Circuit: Not in this case; the Twitter account here was the elected official’s private account, started in her capacity as a political candidate, not as an elected official. Dissent: But the block occurred after she was elected and started using the account for government business. That violates the First Amendment.
• Pro tip from the Eighth Circuit: When seeking qualified immunity for allegedly firing a tear-gas canister at a TV news crew for no good reason, do not rely on a set of factual claims contradicted by the video shot by that very TV news crew.
• Is a private entity constrained by the First Amendment because it rents its space from the government? Still no, says this Ninth Circuit panel.
• Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn’t apply retroactively.
• Another week, another appellate decision involving churches and COVID-19 restrictions. This time, the Ninth Circuit gives a mixed ruling, enjoining some restrictions while upholding others, including a ban on “singing and chanting.”
• Officers shoot a participant in an illegal “sideshow”—an event where drivers perform donuts, burnouts, and other similar maneuvers—while the driver is moving at a speed of “up to five miles an hour.” It’s unclear if the victim knew the police (in an unmarked car with a yellow siren) were actually police, and the police claim they worried he was going to run them over. Ninth Circuit: No qualified immunity. It is clearly established that officers cannot shoot the driver of a slow-moving car when they could reasonably step out of the way instead.
• Kansas militiamen plot to bomb an apartment and mosque complex, acquiring 300 lbs of fertilizer and drafting a manifesto urging Americans to stop “the sellout of this country.” Unbeknownst to them, a militia member is an undercover informant. Convictions and lengthy sentences all around. Tenth Circuit: The defendants were eager to commit the crime and thus not entrapped, and their manifesto—addressed to the government and referencing policy—qualifies them for the terrorism sentence enhancement. (More in this longform piece.)

Are you looking to kick-start a career in public interest law? Are you motivated by working on cutting-edge constitutional cases, stopping government abuses, and championing individual rights? Good news, IJ is hiring for Law and Liberty Fellows to join in August/September 2022. This Fellowship is IJ’s preferred path for recent graduates or post-clerkship candidates with less than two years of experience. The Law and Liberty Fellowship is based at our headquarters in Arlington, VA. We are currently looking for Fellow to join us in August 2022. The program runs through August 2024. Upon completion, Fellows are considered for permanent employment. Visit the Careers section of our website, www.ij.org/jobs, to learn more and apply. Application is open through March 12.

 

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“There’s a messed up set of incentives that’s baked into the K-12 public school system where they get your money regardless of whether they open their doors for business,” says Corey A. DeAngelis, director of school choice for Reason Foundation, the nonprofit that publishes Reason. “Teachers unions had an incentive to keep their doors closed.”

Frustration with the slow pace of school reopening is driving parents to look for alternatives to traditional, residential-assignment schools in historic numbers. Over a dozen state legislatures are considering bills that would massively expand publicly funded school choice options ranging from increasing the number of charter schools to education savings accounts (ESAs) to “backpack funding,” in which public dollars follow kids to whatever schools they attend.

The pandemic, says DeAngelis, may well accomplish what decades’ worth of white papers and school reform activism never did: an education system that puts student needs ahead of teachers unions and education bureaucrats.

Narrated by Nick Gillespie. Edited by John Osterhoudt.

Photos: Valentina Barreto/Westend61 GmbH/Newscom; Mark Hertzberg/ZUMA Press/Newscom; Mark Hertzberg/ZUMA Press/Newscom; Mark Hertzberg/ZUMA Press/Newscom; MARILYN HUMPHRIES/©2020 Marilyn Humphries/Newscom; MARILYN HUMPHRIES/©2020 Marilyn Humphries/Newscom; Mark Hertzberg/ZUMA Press/Newscom; Lev Radin/ZUMA Press/Newscom; Lev Radin/ZUMA Press/Newscom; John Marshall Mantel/ZUMA Press/Newscom; John Marshall Mantel/ZUMA Press/Newscom; Johnny Louis/JL/Sipa USA/Newscom; Peter Titmuss/Education Images/Universal Images Group/Newscom; Paul Bersebach/ZUMA Press/Newscom; MARILYN HUMPHRIES/©2020 Marilyn Humphries/Newscom; John Nacion/SOPA Images/Sipa U/Newscom; John Nacion/ZUMA Press/Newscom; Ringo Chiu/ZUMA Press/Newscom; Ringo Chiu/ZUMA Press/Newscom; Ringo Chiu/ZUMA Press/Newscom; Will Lester/ZUMA Press/Newscom; Will Lester/ZUMA Press/Newscom; Brian Cahn/ZUMA Press/Newscom; Mindy Schauer/ZUMA Press/Newscom; John Nacion/ZUMA Press/Newscom

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Possessions. Available now on HBO Max.

I’m generally skeptical of anything Hollywood calls “multicultural.” It’s usually a cover phrase for “objectively without value except for raising your social-justice score.”

But HBO Max’s new six-hour suspense thriller Possessions is genuinely about as multicultural as you can get: a French production shot in Israel, in French, Hebrew and English (There was probably a producer in charge of nothing but subtitles); a murder mystery underpinned by Old Testament theology; a tirade against both Arab and Jewish superstitions, except, the superstitions might actually work; an encyclopedia of sexual kinks; a training manual on Israeli police science (detective to wife whose husband has just been savagely murdered: “How was sex with him?”); and, most sobering of all, an etiquette handbook for wedding receptions. Consider this tip: When the bride and groom are cutting the wedding cake with a sharp knife, never ever turn the lights off. You’d be surprised what could go wrong.

This last one is the key to Possessions‘ basic scenario. Young Nathalie (French actress Nadia Tereszkiewicz—like most of the cast, virtually unknown to American audiences), a French expatriate living in Israel, has just minutes ago married her Israeli boyfriend, Eran (Imri Biton), and they’re ready to cut the cake. But the lights go out for a moment, and when they return, what’s sliced is not the cake but Eran’s throat. The knife is still in Nathalie’s hand, slathered in gore.

The culprit seems obvious, especially to the lethargic crew at the police station where Nathalie is taken. But one detective, Esti (Noa Koler), after first believing in Nathalie’s guilt (“Cute girls have dark days too”), begins to think there may be at least extenuating circumstances. A physical exam reveals a brutal cross-hatching of bruises and cuts on Nathalie’s legs and back. Then there’s the coroner, who says the angle of the slash on Eran’s throat makes it obvious the killer was left-handed. But Nathalie is a righty.

And as the cops, spurred on by the hard-charging Esti, begin interviewing witnesses, the story gets more erratic. Some of them saw a loud confrontation between Nathalie and her family, minutes before the ceremony, in which the family (particularly her belligerent and seemingly half-crazy mother Rosa, played by Dominique Valadié), demanded that the wedding be called off. Reason: unclear. Also puzzling—that smear of Nathalie’s blood on a ballroom toilet, which was left before the carnage at the cake-cutting. What happened in there? Nathalie says she can’t remember, pretty much her answer to all questions, except for the one about how the sex was with her fiancé: “Awesome.”

Into the middle of this cacophony of confusing, contradictory clues wanders Karim (Reda Kateb), a French vice-consul of Algerian descent, who is supposed to merely be making sure that Nathalie is not being worked over by some Israeli version of Bull Connor. Instead, he falls for her, possibly because she’s winningly vulnerable and possibly because she’s manipulating him. (He’s aware of, and torn between, both possibilities.) Soon he’s running down leads, questioning witnesses and even chasing clues overseas. He’s mystified by what he regards as the apathy of Nathalie’s family members; they, by his fascination for a case that’s really none of his business. “What is your job, exactly?” demands her father after Karim breaks into a building in pursuit of Nathalie.

That’s not the only befuddling thing in Possessions. Much of it revolves around cultural confusion and miscommunication: between French and Israelis, between Israelis and Arabs, between Orthodox and Reform Jews, between estranged parents and siblings, between young and old.  The characters are so isolated and, often, alienated, from one another that the early hours of the show have an almost surreal sense of aimlessness, like a jigsaw puzzle with most of the pieces missing.

But as they start to fill in, and the story starts to reach backwards, Possessions turns from weirdly fascinating to just plain fascinating. When a young Arab steals Nathalie’s wedding dress to hang in a tree in his back yard, his explanation to the cops is simple: He did it to ward off demons. But what demons? The man just shrugs helplessly. They may not know what or why, but everyone in Possessions knows something evil is on the loose.

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Newly identified COVID-19 cases in the United States have fallen sharply since mid-January, a drop that may reflect the waning impact of infections tied to winter holiday gatherings. During the same period, daily deaths leveled off and dipped slightly, and they should decline in February given the recent downward trend in daily new cases.

According to Worldometer’s numbers, the nationwide seven-day average of new cases yesterday was about 163,000, down 36 percent from the average on January 11 but still more than four times the level recorded in mid-September. The seven-day average of daily deaths was about 3,300, down a bit from the peak of more than 3,400 on January 16 and nearly five times the average in mid-October.

Researchers at Harvard University’s T.H. Chan School of Public Health found that “deaths often occur 2–8 weeks after the onset of COVID-19 symptoms.” That suggests the recent decline in daily new cases will be reflected in fewer daily deaths during the next month.

COVID-19 symptoms that might prompt someone to seek testing appear two to 14 days after infection, which makes it plausible that the surge between late December and mid-January was tied to Christmas and New Year’s Eve celebrations. The decline since then suggests that people from different households are getting together less now, as you would expect. The absence of holidays might not be the only factor, since it seems plausible that Americans are exercising greater caution in response to the winter surge.

Did government-imposed restrictions help curb virus transmission? A comparison of California, where Gov. Gavin Newsom ordered a new lockdown on December 3, and Texas, where Gov. Greg Abbott has not imposed any new restrictions, does not provide much evidence that such measures make an important difference.

In California, the seven-day average of daily new cases has fallen by nearly half since January 13. That is twice as big as the drop Texas has seen since its peak on January 15. But California also saw a much bigger increase in newly identified cases in December, notwithstanding Newsom’s sweeping restrictions. The seven-day average in California tripled between December 1 and December 22. In Texas during the same period, the average rose by about 65 percent.

Both states recorded a dip in late December, which probably was mostly due to holiday-related reporting delays. Then daily cases moved up again in both states. In California, the mid-January peak was about the same as the number on December 22. In Texas, it was 28 percent higher, meaning that daily new cases doubled between December 1 and January 15, which is still substantially smaller than the increase in California.

This week, Newsom lifted the new restrictions he imposed on December 3, which closed many businesses, required Californians to stay home except for “essential” purposes, prohibited outdoor dining at restaurants, and banned inter-household gatherings in regions where ICU capacity fell below 15 percent. Newsom reverted to his previous rules, which limit social and economic activity based on county-level COVID-19 data. Those rules are still highly restrictive by Texas standards.

“California is slowly starting to emerge from the most dangerous surge of this pandemic yet, which is the light at the end of the tunnel we’ve been hoping for,” California Health and Human Services Secretary Mark Ghaly said on Monday. “Californians heard the urgent message to stay home when possible, and our surge after the December holidays did not overwhelm the health care system to the degree we had feared.”

California Department of Public Health Director Tomás Aragón offered a similar spin: “Californians heard the urgent message to stay home as much as possible and accepted that challenge to slow the surge and save lives. Together, we changed our activities, knowing our short-term sacrifices would lead to longer-term gains. COVID-19 is still here and still deadly, so our work is not over, but it’s important to recognize our collective actions saved lives and we are turning a critical corner.”

The slippery language used by Ghaly and Aragón conflates exhortation with coercion and voluntary precautions with legal decrees. But there is little reason to think that Newsom’s edicts—especially his bans on low-risk activities such as outdoor dining—did much to slow the surge or turn the corner. Despite taking a much stricter approach than Texas, California saw a bigger surge in cases, and that surge continued for weeks after Newsom’s order. The subsequent decline began around the same time in both states.

“I’m not sure we know what we’re doing,” San Mateo County Health Officer Scott Morrow said a few days after Newsom’s lockdown. That still seems like a pretty accurate assessment.

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A report from the inspector general of the U.S. Department of Health and Human Services (HHS) has determined that a division within the department misappropriated millions in funds meant to respond to public health emergencies like COVID-19. Instead, it spent that money on unrelated expenses like furniture purchases and administrative expenditures. 

The investigation was initiated in 2018 by an anonymous whistleblower who reported that the Office of the Assistant Secretary for Preparedness and Response (ASPR) had been siphoning funds intended for the Biomedical Advanced Research and Development Authority (BARDA), an agency it administers, since at least 2010.

BARDA, which establishes medical countermeasures against public health emergencies like bioterrorism and emerging infectious diseases, was referred to as “the bank of BARDA” within ASPR, according to documents first publicized by The Washington Post on Wednesday.

“ASPR used BARDA’s…funds intended for the development of public health countermeasures, like vaccines…to pay for the removal of ASPR office furniture, ASPR administrative expenses and news subscriptions, legal services used by ASPR, ASPR’s internal resource management system, and the salaries of personnel who did not work for BARDA,” wrote U.S. Special Counsel Henry Kerner in a letter to President Joe Biden.

Kerner, who oversees this investigation, alleges that from 2007 to 2016 ASPR misreported $517.8 million in administrative spending to Congress and that, as recently as 2019, $25 to $26 million was taken from BARDA and improperly given to ASPR.

“I am deeply concerned about ASPR’s apparent misuse of millions of dollars in funding meant for public health emergencies like the one our country is currently facing with the COVID-19 pandemic,” Kerner said. “Equally concerning is how widespread and well-known this practice appeared to be for nearly a decade.”

Although the report does not contain an estimate for the total amount of misappropriated funds, a spokesperson for the Special Counsel’s Office said the office is confident that ASPR wrongfully used millions of dollars meant for BARDA. An accounting firm has been hired to audit the agency. 

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