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Judge James C. Ho of the Fifth Circuit Court of Appeals offered a novel theory this week: “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”

Fortunately, a majority of judges hearing the case didn’t agree.

The story begins in 2013, when sheriff’s deputies in Kaufman County, Texas, responded to reports of a man terrorizing a neighborhood by kicking mailboxes, pointing a gun at resident’s houses, and yelling, “I’m just trying to get back what’s mine.” One complainant stated that there was a man “walking up and down the street, screaming and firing a gun.”

Upon arriving at the scene, Officers Gabriel Hinojosa and Matthew Hinds, a defendant in the suit, stated that they encountered a black male wearing a brown shirt; he allegedly fired one round at the officers before ducking out of sight on two occasions. Then Gabriel Winzer, wearing a blue shirt, allegedly “emerged from behind a house and biked toward the officers,” Ho writes, prompting them to open fire.

Winzer retreated. He was found several minutes later in his father’s backyard with four gunshot wounds to his chest, shoulder, and upper back. His dad was with him, “trying to comfort and revive him.” As Winzer lay dying, officers attempted to handcuff him, but he resisted, so they tased him. Only then were paramedics allowed to enter the scene, where he was pronounced dead shortly thereafter.

Winzer was 25 years old. He was mentally handicapped. And he probably wasn’t the man terrorizing the neighborhood.

Ho’d dissent defends the officers fiercely, disregarding all evidence that contradicts the idea that Winzer was guilty. So he mentions that Winzer’s father had several firearms in his home, but he omits the fact that Kaufman County’s own sheriff confirmed that a gun was never found on Winzer. He also ignores the fact that the officers themselves say the man who fired at them was dressed differently. And he skips over an implausible part of their testimony—the part where Winzer “brought his hand gun to a firing position” while riding a bicycle.

“It is unknown how many lives were saved by these deputies on April 27, 2013,” writes Ho. “What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions—and that its taxpayers, including those who will forever be traumatized by Winzer’s acts of terror, will pick up the tab for any judgment.”

The particulars of the case aside, Ho’s support for the officers rests on the unfortunate legal doctrine of qualified immunity. This holds that public servants can violate someone’s constitutional rights without fear of civil suits if those rights have not been “clearly established” by previous case law. In the case before the court, the county argued that the officers did not breach Winzer’s Fourth Amendment rights because they had “probable cause” to think Winzer “posed a threat of serious bodily harm.”

Ho asserts that qualified immunity is an imperative to protecting the public; without it, he implies, violence will proliferate, because officers will be too afraid to use lethal force. In reality, the contrary is true. Time and time again, civil servants—namely police officers—have used qualified immunity to avoid accountability for their outrageous, and oftentimes violent, actions.

Consider Corbitt v. Vickers, in which the 11th Circuit gave qualified immunity to a police officer who shot a 10-year-old boy in the knee as the cop was trying to shoot the family’s nonthreatening dog. Although the officer faced no apparent threat, the court ruled that he did not infringe on anyone’s constitutional rights because he meant to shoot the dog, not the child. The family was denied compensation for their medical bills.

Or take Jessop v. City of Fresno, in which the 9th Circuit granted qualified immunity to two officers who allegedly stole $226,380 while conducting a search warrant. The court acknowledged that “the City Officers ought to have recognized that the alleged theft was morally wrong,” but it ruled that they “did not have clear notice” that stealing the property violated the Constitution.

The list of abuses goes on, but it does not seem to have moved Ho. Fortunately, the majority disagreed, and rejected the county’s request for qualified immunity.

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The New York Police Department officer fired in August for the chokehold that led to the death of Eric Garner is now suing to get his job back.

Former NYPD officer Daniel Pantaleo was captured on video five years ago confronting Garner on Staten Island. Pantaleo and his fellow officers approached Garner, who they suspected of selling “loosies,” or individual, untaxed cigarettes. Garner was uncooperative when Pantaleo tried to arrest and handcuff him, and in the ensuing struggle, officers pulled Garner to the ground, and Pantaleo put him in a chokehold. Garner said multiple times “I can’t breathe” before losing consciousness. After being transported to a hospital, he was pronounced dead.

The New York Office of Chief Medical Examiner ruled Garner’s death a homicide, a result of the compression of his neck and chest in the confrontation. The district attorney’s office for Richmond County turned to a grand jury for possible charges against Pantaleo, but the grand jury declined to indict him.

New York waited to see if the Department of Justice wanted to file federal civil rights charges against Pantaleo. Ultimately, the Justice Department declined to act. Earlier this year Pantaleo, finally faced an administrative trial to determine what discipline, if any, he should face as a cop. The administrative judge found Pantaleo guilty in August of “recklessly causing physical injury” and recommended Pantaleo’s dismissal. NYPD Commissioner James P. O’Neill agreed with the recommendation and terminated him.

But even after five years and outrage from people across the political spectrum, nearly all whom saw Garner’s death as a wholly unnecessary overreaction by law enforcement, the saga is not over. Pantaleo has hired attorney Stuart London of Worth, Longworth, and London, a Manhattan firm specializing in representing police officers, and is now suing to get his job back.

I contacted London’s office to request a copy of the lawsuit, but have not yet received a response. According to the New York Post, the lawsuit, which was filed in Manhattan civil court on Wednesday, argues that Pantaleo’s firing was “arbitrary and capricious.” London told the Post that he thinks the recommendation to fire Pantaleo was “reckless.” Was that decision as reckless as Pantaleo’s decision to choke a man for selling loose cigarettes?

It’s hard to imagine the NYPD putting Pantaleo back on patrol even if they were forced to rehire him. Every arrest or physical altercation between Pantaleo and any suspect is another lawsuit waiting to happen, and New York spent $230 million last year settling police lawsuits.

But getting back on a patrol route might not be the point of the lawsuit. The New York Post notes that the circumstances of Pantaleo’s firing mean he won’t get a full pension, but he will be able to recoup any money he paid into the fund during his time there. Getting put back on the force, even in a desk job, would put him back on track for a publicly-funded retirement plan were he to eventually retire on his own terms. The Post notes Pantaleo was making $85,292 a year as a cop before getting fired.

The citizens of New York have no obligation to bankroll officers who have abused their power. Pantaleo had his chance to be a good cop and retire on the taxpayer dime.

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This week the Food and Drug Administration (FDA) finally granted a snus manufacturer permission to tell the truth about this Swedish version of oral snuff, which is far less hazardous than cigarettes and contains lower levels of carcinogens than other forms of smokeless tobacco. The Stockholm-based company Swedish Match will henceforth be allowed to display the following statement on packages of its General brand snus sold in the United States: “Using General Snus instead of cigarettes puts you at a lower risk of mouth cancer, heart disease, lung cancer, stroke, emphysema, and chronic bronchitis.”

In the decade since Congress gave the FDA authority over tobacco, this is the first time the agency has allowed such a “modified risk” claim for any product. The FDA says its approval of Swedish Match’s claim “demonstrates the viability of the pathway for companies to market specific tobacco products as less harmful to consumers.” But the arduous process leading to that decision also demonstrates the potentially deadly consequences of the FDA’s censorship.

“Adult smokers deserve the full truth about these products and other reduced-risk tobacco and nicotine products,” says Gregory Conley, president of the American Vaping Association. “The FDA’s claim that this pathway is viable should come with a giant asterisk explaining just how much time and how many millions of dollars Swedish Match had to spend to get permission to tell the truth to consumers.”

It has been clear for decades that smokers can dramatically reduce the health risks they face by switching from cigarettes to smokeless tobacco. The oral pathologist Brad Rodu, now a professor of medicine at the University of Louisville, published a book making that case back in 1995.

Rodu estimates that “modern smokeless products” are “98 percent less harmful than cigarettes.” Snus, which unlike most American smokeless tobacco products is steam-pasteurized rather than flue-cured, is especially appealing as a harm-reducing alternative to cigarettes. The FDA notes that “the levels of two potent carcinogens in smokeless tobacco products called NNN and NNK are lower in these General snus products than [in] the vast majority of smokeless tobacco products on the U.S. market.”

Until this week, however, Swedish Match was not allowed to promote its products as less dangerous than cigarettes in the United States, and even now the FDA-approved claim understates the health advantages of snus. Rodu notes that the statement “refers to ‘lower’ risk of disease, which implies that risks are still present, when, in fact, snus has no risk for mouth cancer, heart disease, lung cancer, stroke, emphysema, and chronic bronchitis.”

Why did this modest step take so long? Notwithstanding the First Amendment, even truthful, nonmisleading statements about the relative hazards of tobacco products are illegal until they have the FDA’s blessing. And under the Family Smoking Prevention and Tobacco Control Act, the 2009 law that charged the FDA with regulating tobacco products, manufacturers have to persuade the agency that a modified-risk claim is not only accurate but will “benefit the health of the population as a whole, taking into account both users of tobacco products and persons who do not currently use tobacco products.”

That “population as a whole” standard means it’s not enough to demonstrate that a product is significantly less dangerous than cigarettes. The FDA is also supposed to consider factors such as whether a modified-risk claim might prolong tobacco use among people who otherwise would have quit entirely or encourage consumption by people who otherwise never would have used tobacco.

All that pondering takes time and requires additional evidence, beyond a straightforward comparison of health risks. “The available evidence does not demonstrate significant youth initiation of these products,” the FDA says, “and evidence submitted by the company also found low levels of intentions to buy the product among non-users of tobacco (including young adults) and, importantly, found that the inclusion of the modified risk claim did not affect these intentions.”

Swedish Match submitted modified-risk applications for 10 varieties of its snus in June 2014. Even getting to that point required a great deal of work: The original applications consisted of 813 files totaling 1.7 gigabytes of data. In July 2015 the company filed amendments to its applications totaling another 1.4 GB. It responded to FDA inquiries with further amendments in September 2018, November 2018, and January 2019. And now, more than five years after the original applications, Swedish Match is legally allowed to say something that Brad Rodu has been pointing out for decades: Snus poses “a lower risk” than cigarettes.

I asked Patrik Hildingsson, vice president for communication and public affairs at Swedish Match, how much this process cost in terms of money and man-hours. “I have also been thinking about the resources put into this process, human capital and monetary cost etc.,” he wrote in an email. “But the truth is that it has not been tracked in a way that makes a fair assessment possible.”

That’s an admirably honest reply. But it seems fair to say that the cost of complying with the FDA’s requirements would deter many applicants without the resources of Swedish Match, which reported revenue of nearly 13 billion Swedish krona (about $1.3 billion) last year. Where does that leave, say, a small or medium-sized vaping company that wants to accurately advertise its products as less dangerous than conventional cigarettes?

The cost of obtaining the FDA’s permission to tell the truth can be measured in lives as well as dollars. Data compiled by Swedish Match show that Sweden, the only country in the European Union where snus is legally available, has by far the lowest smoking rate in the E.U. as well as the highest prevalence of ex-smokers and the lowest prevalence of tobacco-attributed mortality. Snus has been displacing cigarettes in Sweden since the late 1980s.

Norway, a non-E.U. country where snus is also legal, likewise has low rates of smoking and tobacco-related deaths. According to Swedish Match, snus accounted for 37 percent of Norway’s nicotine market in 2014, up from 5 percent in 1985. “During the last 15-20 years,” Hildingsson says, “Swedes used snus to quit smoking.” In Norway, he says, “they are not only quitting; they start with snus and do not move to cigarettes.” As a result, “the smoking drop rate is very, very fast.” Hildingsson predicts that “Norway will outperform Sweden in 3-4 years’ time.”

Americans may not take to snus quite like the Swedes and Norwegians have. But it’s inexcusable that the U.S. government has been actively obstructing these harm-reducing trends by suppressing accurate information about the relative hazards of snus and cigarettes. To the extent that such censorship has discouraged smokers from considering snus, the upshot has been more smoking-related disease and death, all in the name of promoting public health.

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