Category: reason

Despite all the summer protests calling for policing and criminal justice reforms, discussion of actual policy has been largely absent from the Democratic National Convention this week (misguided appearance by Houston Police Chief Art Acevedo notwithstanding).

The official 2020 Democratic Party platform spends several pages on criminal justice reform, and the discussion isn’t bad. Among other things, it talks about holding police and reckless prosecutors responsible for misconduct:

We cannot create trust without holding those in power accountable for their actions. Democrats will reinvigorate pattern-or-practice investigations into police misconduct at the Department of Justice, and strengthen them through new subpoena powers and expanded oversight to address systemic misconduct by prosecutors. Far too often, the law has shielded police officers who stand accused of heinous violations of civil and human rights. Democrats support lowering the intent standard for federally prosecuting law enforcement officials for civil rights violations. We will also act to ensure that victims of federal, state, or local law enforcement abuses of power can seek justice through civil litigation by reining in the doctrine of qualified immunity.

The American people deserve access to timely and accurate data on activities supported by their tax dollars, including policing. We will collect and publish data on the use of force in police departments across the country to promote transparency and accountability. To increase transparency and improve federal, state, and local law enforcement hiring practices, Democrats will also establish a national registry of officers who have been found to have abused their power.

Only the promise to publish data on the use of force was in the party’s 2016 platform. The rest of this is new.

Unfortunately, the reference to “reining in” qualified immunity is much too vague. Qualified immunity protects public officials from federal civil rights suits when they violate citizens’ rights in their line of work, except when there are court precedents that show that the officials’ violated “clearly established” law. Time and again, this has been used to shield abusive police officers, including a ruling this week that protected an officer who kneed a subdued suspect in the eye between 20 to 30 times.

Qualified immunity doesn’t need to be “reined in.” It needs to be eliminated. The weaker language appears to be something that presidential nominee Joe Biden insisted on over the objection of Bernie Sanders’ crew, which sounds similar to the reason why full marijuana legalization is not part of the party platform.

Qualified immunity’s defenders insist that it allows the police to do their jobs without having to worry that they’ll be taken to court simply for having to use force against a suspect. But that just isn’t what the doctrine does. It protects officers who have clearly acted illegally, giving an escape clause to people who can claim ignorance of the law. It’s one set of rules for public officials and a different set of rules for the rest of us.

A majority of Americans oppose qualified immunity. And police unions are already starting to rally behind President Donald Trump and his support of unbridled police power (as long as it isn’t directed toward him). There’s no need to be deferential to Biden here. What would the Democrats actually lose by telling Americans they intend to hold police officers and other government officials to the same legal standards as the rest of us?

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In February, few professors had never heard of Zoom. Almost overnight, the firm exploded in popularity on college campuses. Vendors like Microsoft Teams, Skype Business, and Cisco Webex seem to have been caught flat-footed. Over the past few months, Zoom has introduced some new features that improve its usefulness in class. For example, you can now use powerpoint slides as your virtual background. (I still encourage professors to avoid the temptation to use powerpoint and other screen sharing–they are boring and difficult to follow; use the time in class for frequent polling and other assessments).

Now Zoom’s competitor are catching up. I encourage everyone to watch a video from Microsoft Teams. For sure, it is a slick marketing packeting. But it promotes several features that I think would significantly improve virtual pedagogy.

First, the software allows you to arrange participants in an auditorium format. The background is automatically cropped out, so you see a person sitting in a chair. You can view up to 49 students at once. This design resembles the “virtual bleachers” broadcasted in NBA games from the bubble. I would really appreciate this sort of view. It would make the class so much more life-like.

Second, the software supports live captions. As a person speaks, Teams will automatically generate closed captions. I am not an expert on the ADA, but this sort of feature would help ensure compliance. This captioning would also address a perennial problem in class: when a student asks, “Can you please repeat the question?” Now, students, once called on, can quickly scroll up and read the question. I’m not sure if this is a net-positive or net-negative move. On the plus side, a student can quickly read what was said, and avoid confusion. On the down side, a student may drift off, and re-read a question when called upon. On balance, I tend to think more information is always better. But I suspect some professors will disagree.

The third feature is potentially significant. At the end of the session, Teams will automatically generate a transcript of the entire class. Far too often, students feel the need to type down everything a professor says, verbatim. This dictation approach is awful. Students cannot process information when they are robotically typing. Some professors ban laptops, and assign a single student as a dedicated note-taker. Even then, the notes are not complete. But now, Teams generates a single, official transcript. Students will have no excuse–really no reason–to type everything verbatim. And all students will have access to the same material. I am very excited about this last feature.

Now, some professors will not want their words to be transcribed, for much the same reason they do not want to to be recorded. My general advice: get over it. Every professor should presume that they are being recorded at all times–especially over Zoom. Screen-recording is so simple. And it is always better to have your own backup copy. Still, a written transcript is far less risky than a recorded video. It is tough for a transcript to go viral on YouTube.

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In a presidential election in which a record-high percentage of Americans (25 percent overall, including 37 percent of independents) agree that neither major-party candidate “would make a good president,” it makes sense that traditional viewership for the Democratic National Convention (DNC) is tanking. The shift to an all-online convention, including a high number of pre-taped speeches, certainly hasn’t done anything for the intensity of audience engagement.

According to the ratings service Nielsen, the first night of the DNC pulled about 19.7 million viewers across broadcast and cable stations, down from 26 million viewers in 2016. The second night of the convention had about 19.2 million watchers, down from about 25 million four years ago. Nielsen hasn’t released ratings for last night yet.

A spokesman for Joe Biden, TJ Ducklo, tweeted triumphantly after the first night that “28.9 million Americans tuned in to @DemConvention last night across TV & digital platforms, up from 2016 & shattering the previous record for digital streams, which totaled 10.2m even as numbers still come in.” But Duckclo didn’t include any source for his estimate of digital viewership, leading NPR media correspondent David Folkenflik to ask, “Where are you deriving streaming figures from?” No answer was forthcoming.

Apart from partisan hype, measuring the online audience is no simple matter. It is surely higher than in 2016, but it’s far from clear that its growth would more than cover the decline in cable and broadcast watching. CNN Digital, which tracks audience on that channel’s multimedia desktop site and mobile apps, reports that “digital multiplatform unique visitors and video starts are up 38% and 19% versus the second day of the 2016 DNC.” But the channel also said that just “53k users live stream[ed] the average minute of the convention programming from 9-11p.m. (equivalent to the way TV ratings are calculated). Digital average audience was up +6% from day 2 of the conventions in 2016.”

A 6 percent increase in digital average audience and 53,000 people livestreaming the DNC during its peak time are nothing to write home about, even if you multiply such figures out over other platforms and sites. With historically low levels of enthusiasm for either the Republican or Democratic candidate, the Biden campaign’s claim to record viewership is highly dubious. 

The national conventions long ago stopped being a place where any real news might happen or where unscripted events would reveal something authentic or telling. The shift to online-only underscores the reality that the DNC and RNC are infomercials pitched to the parties’ bases rather than events designed to reach out to uncommitted voters. The rest of us will simply have to bide our time for a more substantive discussion of the country’s uncertain future. It’s not clear when or whether we’ll have presidential debates but if we do, they will certainly go a long way to settling questions about the mental acuity of Trump and Biden. And they might actually put some electricity into an election surprisingly devoid of energy despite the hyperbolic rhetoric of partisans declaring it (yet again!) as the most-important election in our lifetime.

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From Becker v. State, decided yesterday by the Texas Court of Appeals, in an opinion by Chief Justice Brian Quinn:

It is a crime for a member of a “criminal street gang” to carry a handgun while in a car or boat, if he owns or controls those vehicles. Apparently, the same cannot be said of that same “criminal street gang” member carrying it while walking, riding a bike, or even riding a horse. Nor is it true, under the expressed wording of the statute, if he carries the firearm while riding in a car or boat owned and controlled by someone else, including a fellow “criminal street gang” member.

How about riding on a motorcycle? The statute refers to carrying the weapon “in a motor vehicle.” Like riding Mother Nature’s horse, riding a two-wheeled iron one involves being atop or “on” it. Of course, one may scoff at drawing such hyper technical distinctions; but, do not such hyper technical distinctions already exist in a statute that criminalizes possession of a handgun when driving his own car but not while being driven in another person’s car or while simply walking on a street.

Let us try another, shall we? What if the State licensed that supposed “criminal street gang” member to carry the firearm? In so licensing the person, logic suggests that it approved of his carrying the weapon. Though not a criminal for purposes of securing a license, the person apparently becomes one simply by sitting in his own car or boat with the item he was licensed to carry.

{[But] the statute underlying his prosecution lies within Chapter 46, § 46.02 of the Penal Code. Elsewhere in the very same chapter of the very same Code lies another provision. It provides that “[s]ection 46.02 does not apply to a person who … is carrying … [both] … a license issued under subchapter H, Chapter 411, Government Code, to carry a handgun … and … a handgun … in a concealed manner … or … in a shoulder or belt holster.” Id. § 46.15(b)(6)(A), (B) (emphasis added). The potential impact of the latter statute upon the State’s prosecution of Becker for violating a subpart of § 46.02 is apparent. If § 46.15(b)(6) means what it says, his having a license to carry may well remove him from the teeth of § 46.02(a-1).}

Those are a few of the mystifying mind teasers revolving around this appeal from an order denying Ashely Becker’s pretrial writs of habeas corpus. Yet, Becker was not “in” a motor vehicle but on his motorcycle. Furthermore, his purported status as a “criminal street gang” member allegedly arose upon joining the Bandidos Motorcycle Club. He argued below and here that focusing merely on his membership in the purported “criminal street gang” to prosecute him for carrying a handgun that the State licensed him to carry violated a myriad of his constitutional rights. The trial court disagreed and denied both his facial and “as applied” constitutional attacks levied against § 46.02(a-1) of the Texas Penal Code. We have been afforded the opportunity to consider that decision but forgo it at this time….

[The facts of the case:] Becker and [another motorcycle rider] wore vests depicting membership in the Bandidos. The latter organization was “confirmed as an ‘Outlaw Motorcycle Gang,'” according to the deputy. And, upon approaching “both motorcyclists,” he spoke first with Becker who “handed [the deputy] a Texas Driver’s License and a Texas License to Carry” a concealed weapon. Upon seeing the license to carry, the deputy asked Becker if he (Becker) possessed a handgun. Becker “advised he had his gun on his hip.” … Becker’s carrying the weapon allegedly violated § 46.02(a-1) …

The court concluded, however, that under Texas appellate procedure it couldn’t reach these issues on a pretrial writ of habeas corpus; presumably they will need to be raised in various motions before the trial court, and then perhaps in an appeal after a trial.

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I don’t have much to say about yesterday’s Fifth Circuit decision in Defense Distributed v. Grewal (written by Judge Edith Jones and joined by Judges Jennifer Elrod, with a concurrence by Stephen Higginson), another example of the lawyer’s true superpower: the power to make every question into a question about procedure. Here’s the core of the majority’s analysis:

Plaintiff Defense Distributed is a Texas company operated for the purpose of promoting popular access to firearms. To carry out this purpose, it produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public….

Defense Distributed began distributing files related to the 3D printing of firearms in December 2012. It did so by publishing files to its defcad.org and defcad.com websites and letting visitors freely download them. It also distributed digital firearms information via mail and at a brick-and-mortar public library in Austin, Texas. Defense Distributed’s efforts were initially met with opposition from the United States Department of State. But, after a period of litigation, the parties reached a settlement agreement that granted Defense Distributed a license to publish its files.

Shortly thereafter, nine Attorneys General, including New Jersey Attorney General Grewal, filed suit on behalf of their respective states in the Western District of Washington to enjoin the State Department from authorizing the release of Defense Distributed’s files. They argued that the State Department’s license to Defense Distributed constituted an ultra vires about-face that violated the Administrative Procedure Act and jeopardized the states’ statutory and regulatory schemes for firearms. The Western District of Washington quickly issued a temporary restraining order, followed closely by a nationwide preliminary injunction.

Just before the Attorneys General sued in Washington, Defense Distributed and SAF brought the instant action in the Western District of Texas challenging select enforcement actions taken by the state Attorneys General. Of relevance to this appeal, plaintiffs alleged these actions by Grewal: (1) sending a cease-and-desist letter threatening legal action if Defense Distributed published its files; (2) sending letters to third-party internet service providers based in California urging them to terminate their contracts with Defense Distributed; (3) initiating a civil lawsuit against Defense Distributed in New Jersey; and (4) threatening Defense Distributed with criminal sanctions at a live press conference. Further, these actions, coupled with the injunctive orders issued in the Washington litigation, have caused Defense Distributed to cease publication of its materials. The plaintiffs asserted, inter alia, that these actions infringed the exercise of their First Amendment freedoms and constituted tortious interference with the State Department’s settlement agreement….

Grewal moved to dismiss for lack of personal jurisdiction…. [The question is whether federal courts in Texas have] specific jurisdiction [over Grewal, on the theory that he is a] defendant “doing business” in the state, including defendants who “commit[ ] a tort in whole or in part in th[e] state.”

“The constitutional requirement for specific jurisdiction is that the defendant has ‘minimum contacts’ with the forum state such that imposing a judgment would not ‘offend traditional notions of fair play and substantial justice.’ ” This court has framed the inquiry as a three-step analysis: “(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff’s cause of action arises out of or results from the defendant’s forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.”

The issue on appeal is whether Grewal has established sufficient minimum contacts with Texas… “[T]he totality of [Grewal’s] contacts with Texas involves a cease and desist order” sent to Defense Distributed. And Grewal’s purpose in issuing the cease-and-desist letter ostensibly was to enforce New Jersey public nuisance and negligence laws (more on this below). Further, Grewal, … was sued in his official capacity and did not derive commercial benefits from performing his governmental function….

[Grewal] does not cabin his request by commanding the plaintiffs to stop publishing materials to New Jersey residents; he instead demands that the plaintiffs cease publication of their materials generally. For example, in his cease-and-desist letter, Grewal states that the plaintiffs’ “widespread dissemination of printable-gun computer files is negligent because it encourages an illegal gun market, which will foreseeably lead to increased crime and violence in New Jersey.” He accordingly requests that Defense Distributed “halt publication of the printable-gun computer files” without specifying that Defense Distributed cease marketing its materials to New Jersey residents.

Grewal’s conduct beyond sending the cease-and-desist letter confirms his intent to crush Defense Distributed’s operations and not simply limit the dissemination of digital files in New Jersey. Grewal’s enforcement actions are selective. He has not targeted the many similarly-situated persons who publish Defense Distributed’s files on the internet. Instead, he has focused solely on Defense Distributed. Perhaps nowhere is this better illustrated than in Grewal’s efforts to enjoin the national distribution of Defense Distributed’s files by suing in Washington, far from his or the plaintiffs’ home state. Grewal has also threatened Defense Distributed’s founder, Cody Wilson, by name, promising to “come after” “anyone who is contemplating making a printable gun” and “the next ghost gun company.” Together, these actions confirm Grewal’s intent to force Defense Distributed to close shop.

Relatedly, the intended effects on the plaintiffs and, by extension, the intended effects on Texas residents who would benefit from the plaintiffs’ activities, are [thus substantial]…. Grewal seeks to bar Defense Distributed from publishing its materials anywhere, not just in New Jersey. Grewal’s actions, moreover, have all been taken in the name of law and order. He has projected himself across state lines and asserted a pseudo-national executive authority ….

[Plaintiffs] allege that Grewal’s letter had a chilling effect on the exercise of their First Amendment rights (among other constitutional and Texas law violations). That chilling effect, in turn, caused them to cease publication and reduced Texans’ access to the materials the plaintiffs seek to publish…. In this sense, Grewal created contacts with Texas and not just the plaintiffs.

Grewal’s contacts with Texas, moreover, are more than a “mere fortuity” …. Grewal intentionally mailed the cease-and-desist letter into Texas …. Further, that contact alone gave rise to distinct tort causes of action. Grewal knew that the cease-and-desist letter would “have a potentially devastating impact” on the plaintiffs—and, by extension, those who wished to benefit from the plaintiffs’ activities, including Texas residents. And he “knew that the brunt of [the] injury would be felt by [the plaintiffs] in [Texas].” Based on the foregoing analysis, … Grewal has established sufficient minimum contacts with Texas to subject him to the jurisdiction of Texas’s courts.

{We do not intend to convey that sending a cease-and-desist letter into a forum always subjects the sender to jurisdiction in the forum state…. “There are strong policy reasons to encourage cease and desist letters. They are normally used to warn an alleged rights infringer that its conduct, if continued, will be challenged in a legal proceeding, and to facilitate resolution of a dispute without resort to litigation. If the price of sending a cease and desist letter is that the sender thereby subjects itself to jurisdiction in the forum of the alleged rights infringer, the rights holder will be strongly encouraged to file suit in its home forum without attempting first to resolve the dispute informally by means of a letter.” … Indeed, … sending a cease-and-desist letter may, under different circumstances, be insufficient to establish personal jurisdiction. Today’s holding is derivative of the specific language used in Grewal’s cease-and-desist letter coupled with other actions he took that, together, demonstrate his intent to gut Defense Distributed’s operations and restrict Texans’ access to Defense Distributed’s materials. That the plaintiffs’ injuries are directly attributable to the cease-and-desist letter itself also weighs heavily in our analysis.}

 

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