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

“As people in lockdown take clippers to their own shaggy hair, they are learning that cuts from unlicensed stylists are not a health hazard—even if the results underscore the wisdom of leaving the job to a market-tested professional.” So writes IJ Senior Attorney Paul Sherman in the pages of The Atlantic, making the case for permanently scrapping unnecessary red tape. Click here to read it.

New on the Short Circuit podcast: 20 years of harassment over court debt, completed misdemeanors; and jail debit cards. Click here for Apple Podcasts.

• Man is convicted of 1970 Washington, D.C. murder on the strength of testimony from two friends who said he confessed and an FBI agent’s hair microscopy analysis, the latter of which the FBI now admits is junk science. (The man escapes from prison in 1978 and isn’t recaptured until 2006.) Set aside his murder conviction? Indeed, says two-thirds of a D.C. Circuit panel: As we said when we first reviewed the case in 1973, the friends were quite likely unreliable. So the hair evidence was material.
• Military judge presiding over 9/11-related military-commission trials served as a counterterrorism lawyer for nine months in 2014 and, in 2007 and 2008, twice participated on an endurance race team with one of the prosecutors. None of which is enough to require the judge’s recusal, holds the D.C. Circuit. Mandamus denied.
• To receive SSI benefits, one must live in one of the 50 states, D.C., or the Northern Mariana Islands. Feds: So man who moved from New York to Puerto Rico and continued collecting must pay back $28k (even though, per the Jones Act of 1917, Puerto Ricans are U.S. citizens). First Circuit: There is no rational basis for denying benefits to Puerto Ricans. Indeed, Puerto Ricans pay more federal taxes than the residents of six states.
• Woman creeps people out at Saco, Maine grocery store on multiple occasions over several years but is never violent—until she stabs an elderly shopper to death. Was the murder foreseeable such that the grocery store must pay damages? The First Circuit says no.
• South Boston residents participating in bizarre local custom—a keg party on St. Patrick’s Day—draw the ire of a neighbor, who summons police. The police suspect underage drinking and enter the apartment through an open door. (Officers say their knocks were drowned out by the loud music.) Jury: That is not unlawful entry. District court: No, it is. Three officers must pay $1 each. First Circuit: Nope. Qualified immunity.
• Vocal 12-year-old Trump supporters sue Newsweek for defamation after the magazine runs an article titled “Trump’s Mini-Mes,” in which a journalism professor criticizes the use of children as political spokespeople for what he characterizes as “raw racism and sexual assault.” Third Circuit: “Every contested statement in Newsweek’s article is an opinion, label, or speculation based on disclosed facts and alleges no specific wrongdoing. Such statements cannot defame.”
• Pennsylvania gov’t investigators use an invalid subpoena to get a Penn State employee’s work emails. She sues them, alleging a violation of a 1980s anti-hacking law called the Stored Communications Act. Third Circuit: No dice! Penn State turned over the emails voluntarily; nobody broke into a computer. Dismissal affirmed.
• In 1985, woman’s body is found in the Rappahannock River tied down with a cinder block and 10 miles upstream of where defendant’s boat had been seen docked four days previously. In 1986, defendant is convicted of the murder on the strength of (among other things) now-discredited hair microscopy analysis and a marine scientist’s testimony that the body could have traveled the 10 miles. In 2016, a box of undisclosed evidence is discovered that contains (among other things) an FBI report estimating the body could have moved only 500 to 600 yards. Fourth Circuit: The man (who’s been out on parole since 2017) can challenge his conviction. (Click here for some long longform journalism.)
• The latest in the quickly evolving COVID-related litigation about temporarily halting abortions: After much volleying among courts, the Fifth Circuit says two kinds of abortions may now be conducted in Texas: medication abortions and surgical abortions for women whose pregnancies will be past the legal limit for abortion when the governor’s order ends. Next door in Oklahoma, there’s less back-and-forth: The Tenth Circuit will not review a district court’s order allowing medication abortions and surgical abortions for women whose pregnancies will be past the legal limit for abortion when the governor’s order ends.
• Economist for BP breaks bad, pretends to be a hacker who has stolen sensitive data, and demands 125 bitcoins in ransom (then approximately $340k). BP contacts the FBI and, with help from BP’s 44-member digital-security team, identifies the culprit, who is sentenced to 27 months in prison. Is he also liable for BP’s $552k in investigatory expenses? Fifth Circuit: Maybe in tort, but not under the Mandatory Victims Restitution Act’s residual clause, which deals with the sort of expenses incurred while missing work. “Think about it: The costs of a babysitter, a tank of gas, a parking meter—and a 44-person digital security team. One of these things is not like the others.”
• Fired by its personal-injury clients for missing discovery deadlines, failing to disclose an expert, and making an unauthorized settlement demand, law firm demands its fair share of the eventual settlement proceeds. Eighth Circuit: And you’ll get your fair share. Don’t spend the $0 all in one place.
• In 1873, the Supreme Court all but redacted the Privileges or Immunities Clause from the Constitution—save for holding that the clause protects (among a very few other things) citizens’ right to use the navigable waters of the United States. Citizen: I would like to operate a private boat service on a navigable waterway, Lake Chelan in Washington state, to bring customers 55 miles to my resort that is unreachable by road. And the state has barred me from doing that for over 20 years solely to protect a ferry service it gave an exclusive franchise to (in 1929) from competition. A violation of the Privileges or Immunities Clause? Ninth Circuit (2013): We’re not sure the state is actually preventing you from operating. Go back to state court to make sure. Ninth Circuit (2020): Actually, you didn’t need to go back to state court. The proposed service doesn’t cross state lines, so you lose. (This is an IJ case. For a lovingly crafted longform podcast on the saga, click here.)
• In 2007, after extensive negotiations, federal prosecutors reached a secret non-prosecution agreement with Jeffrey Epstein, who sexually abused more than 30 minor girls between 1999 and 2007. (In exchange for immunity from federal prosecution, Epstein pleaded guilty to state crimes, spent parts of 13 months in jail.) Did prosecutors’ failure to apprise victims of the negotiations and the agreement—indeed, they took steps to conceal it—violate the victims’ right to be treated with “fairness” and “dignity,” as required by the federal Crime Victims’ Rights Act of 2004? Two-thirds of an Eleventh Circuit panel says no; CVRA rights don’t kick in until criminal proceedings have been initiated.
• Arrested on suspicion of drunk driving, Florida woman blows 0.00 on two breathalyzer tests but is nevertheless detained for eight hours under Seminole County Sheriff’s Department policy. A Fourth Amendment violation? Eleventh Circuit: Might could be; the claim against the sheriff should not have been dismissed.

Since Prohibition times, the Supreme Court has said (wrongly) that the Fourth Amendment does not protect “open fields,” permitting law enforcement to traipse across private property without a warrant or probable cause. So does Terry Rainwaters, who lives, farms, and hunts on 136 acres along the Big Sandy River in Tennessee, have to put up with state wildlife officials trespassing on his land to put up surveillance cameras (in hopes of finding evidence of illegal hunting practices)? Not at all! This week, Terry and IJ filed suit in Tennessee state court, where the open fields doctrine has been rejected repeatedly. Click here to learn more.

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The latest results of mass antibody testing in San Miguel County, Colorado, suggest that 1 to 3 percent of the local population has been infected by the virus that causes COVID-19. The early results from the program, the first of its kind in the United States, underline the point that official counts of COVID-19 cases, which are limited to people who are sick enough to be tested for the virus, greatly understate the total number of infections.

United Biomedical, a company based in Hauppauge, New York, is collaborating with the San Miguel County Department of Health and Environment to test all 8,000 or so residents of the county. So far the company has drawn about 6,000 blood samples, although analysis has been delayed because of limited laboratory capacity. The health department announced initial results on April 2 and April 14.

As of Monday, the county had received 1,330 test results, of which 11 were positive and 28 were borderline. Assuming that the initial samples are representative of the county’s general population, that suggests between 0.8 percent and 2.9 percent of residents have been infected by the COVID-19 virus, including people who had mild or no symptoms.

Applying those rates to the U.S. population implies 2.6 million to 9.5 million infections nationwide, compared to fewer than 700,000 confirmed cases so far. There is reason to think the nationwide prevalence is higher than the rate in San Miguel County, a sparsely populated area of southwestern Colorado with 5.7 people per square mile, compared to the U.S. average of 94. Even in Telluride, the county’s seat and biggest city (with about 2,500 residents), there are 1,120 people per square mile, compared to about 4,000 in Dallas, 4,700 in Denver, 12,000 in Chicago, 19,000 in San Francisco, and 28,000 in New York City.

Leaving aside differences in population density, the San Miguel County results suggest that the true number of infections in the United States may be four to 14 times as high as the number of confirmed cases. Similarly, researchers at the University of Gottingen in Germany recently estimated that the official U.S. count as of March 30 excluded more than 90 percent of infections. Australia’s chief medical officer likewise suggested this month that the global case tally was off by a factor of about 10. A study based on unusually high numbers of influenza-like illnesses, by contrast, estimated that official COVID-19 counts as of late March included just one out of 100 symptomatic cases in the United States.

Virus tests of volunteers from Iceland’s general population have come up positive about 0.7 percent of the time so far. That result, which is similar to the low-end estimate for San Miguel County, is based on nearly 24,000 tests in a country with a population of about 340,000. It does not include people who were infected but no longer carry the virus, who would be identified by antibody tests.

Iceland reported its first confirmed COVID-19 case on February 28, more than a month after the United States did. And unlike the United States, Iceland has combined wide testing with aggressive contact tracing and targeted quarantines. It therefore seems likely that the prevalence of infection is higher in the United States.

The actual prevalence of the virus is crucial in estimating not just the risk of infection but the odds that it will kill people who catch it. Although the overall fatality rate is obviously relevant in deciding how to fight the epidemic, current estimates cover an absurdly broad range because we have no idea how many people have been infected. “Fatality rates based on comparing deaths, which are relatively easy to count, to infections, which are not, almost certainly overestimate the true lethality of the virus,” The New York Times notes. “Health officials and epidemiologists have estimated there are five to 10 people with undetected infections for every confirmed case in some communities, and at least one estimate suggests there are far more.”

Clarifying these issues will require mass testing that goes beyond a single rural county in Colorado. The Centers for Disease Control and Prevention, which helped engineer the testing fiasco that has left us ignorant of basic facts about the COVID-19 epidemic, recently began promising “wide studies of community transmission” based on antibody tests.

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“If during the next sixty to seventy years the world farmer reaches the average yield of today’s US corn grower, the ten billion will need only half of today’s cropland while they eat today’s American calories,” concluded agronomist Paul Waggoner in his seminal 1996 article, “How Much Land Can Ten Billion People Spare for Nature?“

In their 2013 article, “Peak Farmland and the Prospect for Land Sparing,” Waggoner and Rockefeller University researchers Jesse Ausubel and Iddo Wernick citing current global trends in yield increases and fertilizer deployment calculated if biofuel production could be reined in, that as much as 400 million hectares (1.5 million square miles) of current cropland could be returned to nature by 2060. That’s about 25 percent of the land currently devoted to growing crops. “Now we are confident that we stand on the peak of cropland use, gazing at a wide expanse of land that will be spared for nature,” the authors concluded.

It is worth noting that according to Food and Agricultural Organization data, cropland has not yet topped out, but agricultural land which includes pastures peaked back in 2000.

Now a new study in the journal Nature Sustainability by researcher Christian Folberth and his colleagues at the International Institute for Applied Systems Analysis in Austria reinforces the findings from these earlier reports.

In their article, “The global cropland-sparing potential of high-yield farming,” the researchers calculate a scenario that closes current global yield gaps, bringing the crop yields of farmers in poorer countries up to those in richer countries. Achieving that goal “would allow reduction of the cropland area required to maintain present production volumes by nearly 50% of its current extent.” That would mean that about 576 million hectares (2.2 million square miles) could be restored to nature.

The researchers also sketch out an alternative high crop yield scenario that specifically aims to protect and expand the habitats of threatened species. In that case, cropland use would still shrink by almost 40 percent.

Keep in mind that these scenarios are conservatively reckoning what would happen to global land use assuming that essentially all of the world’s farmers adopt modern high yield agriculture. They do not take into account technological improvements in farming over the coming decades.

In addition, possible shifts in consumption toward alternative protein sources such as plant-based “meats” or cultured meats are not considered. Since about 36 percent of cropland is used to produce animal feed and the vast majority of agricultural land is pasture, such changes in consumer tastes could result in hundreds of millions more hectares of land being spared for nature by the middle of this century.

At the end of my book The End of Doom, I wrote:

New technologies and wealth produced by human creativity will spark a vast environmental renewal in this century. Most global trends suggest that by the end of this century, the world will be populated with fewer and much wealthier people living mostly in cities fueled by cheap no-carbon energy sources. As the amount of land and sea needed to supply human needs decreases, both cities and wild nature will expand, with nature occupying or reoccupying the bulk of the land and sea freed up by human ingenuity. Nature will become chiefly an arena for human pleasure and instruction, not a source of raw materials. I don’t fear for future generations; instead, I rejoice for them.

Happily this new study bolsters that conclusion.

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From City of Las Cruces v. Flores (N.M. Ct. App.), decided Mar. 11 but only posted on Westlaw this week:

Defendant was charged under the LCMC [Las Cruces Municipal Code] for the offenses of evading an officer and concealing identity.

The evidence presented below is undisputed. The trial testimony established that two officers were in Defendant’s neighborhood investigating a report of a stolen car. Defendant, apparently believing the officers were attempting to catch and ticket traffic violators just to generate revenue, recorded the officers on his cell phone and yelled that they were wasting taxpayer dollars and should go collect revenue elsewhere.

At some point, Defendant’s neighbor came outside and spoke with one officer while the other officer remained with Defendant. The neighbor stated that he came outside because he heard his dogs barking, not due to Defendant’s yelling. The neighbor testified that he saw Defendant holding up his cell phone like he was recording the officers and verbally criticizing the police about his belief that police waste taxpayer money. The neighbor told the officer that Defendant was not bothering him but said that Defendant was “always yelling.” He further testified that Defendant was talking in a “high tone of voice” and in an excited, but not agitated, manner. There were no complaints from other neighbors.

Following his conversation with the neighbor, the officer approached Defendant, who was standing with another officer, and asked him for identification. Defendant turned his phone toward the approaching officer, held up his other hand in a gesture to stop and told the officer “step back.” As the officer continued to approach, Defendant said “stay away from me.” The officer told Defendant “if you keep yelling and you keep screaming, and you keep causing people to come outside, you will be arrested for disorderly conduct.”

The officers repeatedly demanded Defendant provide his identification. Defendant responded, “I don’t need to identify myself to you, because I have not committed [a] crime.” One of the officers replied, “The crime is disorderly conduct.” According to the officers, Defendant was obstreperous with them, denied their repeated request to produce identification, and ultimately started to walk away into his yard.

The officers ran after Defendant and once in Defendant’s yard, pushed Defendant to his knees, tased him, and pepper sprayed his face. Defendant was handcuffed and arrested. Following a bench trial, Defendant was convicted of two counts of resisting, evading or obstructing an officer and one count of concealing identity. Defendant now appeals….

{Because we conclude that the officers were without reasonable suspicion to detain Defendant, we need not address Defendant’s argument that his conduct was protected by the First Amendment.}

[A.] Reasonable Suspicion as an Element of the Charges

Like its state statute counterpart, one of the essential elements of the LCMC crime for evading an officer is that “the person committing the act of … evasion has knowledge that the officer is attempting to apprehend or arrest him[.]” Our Supreme Court in State v. Gutierrez, stated that the definition of “apprehend” in Section 30-22-1(B) means a “seizure[ ] in the name of the law” and equated such an apprehension “to include a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion.” Hence, our Supreme Court concluded that the presence of reasonable suspicion is crucial to a determination of sufficiency of the evidence for evading and eluding an officer because if the detaining officer lacked reasonable suspicion then he also lacked the legal authority to detain the defendant.

Further, like the state statute, one of the elements of concealing identity pursuant to Las Cruces, N.M., Code of Ordinances, art. I, Section 19-4 requires proof that the officer is acting “in a legal performance of his duty.” In Ortiz, this Court recognized well-established law that “[a]n officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment.” Reasonable suspicion is required for such a seizure. Consequently, we held that absent reasonable suspicion to detain, the seizure of the defendant was unlawful, and the prosecution failed to prove that the officer was in the legal performance of her duty…..

[B.] The Officers’ Lacked Reasonable Suspicion to Detain Defendant …

The district court—apparently without regard to the neighbor’s testimony—concluded that the officers had reasonable suspicion to investigate disorderly conduct based on the fact that Defendant loudly criticized police. Disorderly conduct consists of: “[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace[.]”Conduct is not criminal, or suspicious, simply because it is boisterous or unreasonably loud; the conduct must also tend to disturb the peace.

This is particularly true when the conduct at issue is comprised of words alone. New Mexico courts have criminalized only limited classes of speech: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

The public’s sensibilities are tough enough that, typically, the act of yelling alone does not shatter public order or threaten to do so. Although the Legislature has not specifically defined “conduct that tends to disturb the peace,” our Supreme Court has implicitly defined it as “a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” Our Supreme Court has instructed that we construe the disorderly conduct statute narrowly, and “unless the acts [that are alleged] fall clearly within the statute, they are not disorderly.

In its ruling that Defendant’s conduct toward the officers provided reasonable suspicion to investigate disorderly conduct, the district court explained:

“[Y]ou’re not allowed to be so boisterous and so loud to police officers, and accusing, and threatening—I think that was the disorderly conduct. When police officers approach us and want to investigate something, it’s “yes” or “no, sir”, or somebody can end up dead. … When a police officer approaches you and asks you for ID, you give it to them. That’s the way that goes. Now if you’re just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make.”

Contrary to the district court’s reasoning, our Supreme Court and this Court have applied the rule that in most instances “arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior.” Merely yelling obscenities at an officer, without more, does not create reasonable suspicion to investigate or probable cause to arrest for disorderly conduct. {Although the district judge implied that Defendant’s conduct was accusing and threatening, our review of the record and lapel tape is devoid of evidence that Defendant by word or action made any threats to the officers and neither party has asserted on appeal that Defendant’s criticisms of the officers were threatening.}

“Police officers, by nature of their training, are generally expected to have a higher tolerance for offensive conduct and language.” … “We are not indifferent to the officers in the case.” These officers play an invaluable role in serving and protecting our community, and unfortunately, they are often subjected, as they were here, to ill-advised behavior. “However, it is because of their degree of skill, training, and experience that we rely on officers,” not only to complete their duties, but “not to react to verbal provocation, at the risk of escalating a situation rife with conflict.”

Without evidence of anything more than Defendant’s loud remarks and cell phone recording of the officers, all of which occurred in their presence, the testimony did not give rise to an objectively reasonable suspicion that Defendant had committed or was committing the crime of disorderly conduct…. “New Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language….”

We next address the City’s argument that, even in the absence of reasonable suspicion to investigate disorderly conduct, Defendant’s repeated refusal to produce identification or, following this refusal, to respond to officer commands not to walk away justified Defendant’s detention and arrest. While the City is correct that officers “do not need justification to approach a person and ask that person questions,” this is true only so long as the person remains free to leave and is not required to answer their questions. “[A] person has the constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants to question the person[.]”A defendant who flees a seizure that is unsupported by reasonable suspicion cannot be punished for exercising his right to end the encounter and walk away. In sum, the officers did not have reasonable suspicion to detain Defendant and demand his identification….

Lastly, to the extent the City argues that it was reasonable for the officers to detain defendant to investigate his yelling and whether he was disturbing the tranquility of the community, we disagree. The evidence does not support a conclusion that it was reasonable for the officers to investigate Defendant’s conduct as tending to cause “consternation and alarm.”

Our review of the record does not reveal, nor does the City point to, any threatening behavior or violent conduct accompanying Defendant’s verbal criticisms and cell phone recording of the officers. Additionally, the record does not reflect that Defendant’s behavior toward the officers tended to have any effect on others at all, let alone that it rose to the level of tending to cause “alarm” amongst his neighbors.

While the testimony established that a neighbor came out of his home during the encounter between officers and Defendant, Defendant was not the reason that the neighbor came outside. The officers’ testimony did not articulate any objective facts which would establish that Defendant’s conduct tended to disturb the peace. Indeed, the record is void of any evidence that Defendant’s yelling and cell-phone recording annoyed or bothered anyone other than the officers….

[T]here must be evidence that those who heard a defendant’s remarks were negatively affected by or reacted to the statements in order to show that remarks were likely to incite listeners to breach the peace because “[t]o hold otherwise would be to allow police routinely to add disorderly conduct charges to any underlying charges because it is not uncommon for those being arrested to become belligerent and for crowds to gather at the sight of an arrest[.]” … Without more, Defendant’s loud criticism of the police and his act of recording them on his cell phone were not enough to provide an objectively reasonable suspicion to investigate Defendant for disturbing the tranquility of the community.

Absent reasonable suspicion establishing the officers’ legal authority to detain Defendant, there was insufficient evidence to support Defendant’s convictions for evading arrest and concealing identity. Accordingly, we do not address the remaining elements of the charges.

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