Short Circuit: A Roundup of Recent Federal Court Decisions

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

State restrictions on selling homemade food items often serve no public health and safety interest and prevent people—disproportionately women from poor and rural areas—from earning an honest living. Read more about North Dakota’s recent crackdown on food freedom in USA Today from IJ staffers Jennifer McDonald and Daryl James.

  • In 2014, a commercial flight en route to Beijing disappears over the southern Indian Ocean. All 239 passengers and crew, including three Americans, presumed dead. An investigation yields little insight as to the cause. And, says the D.C. Circuit, the district court did not err in holding that claims against Boeing and Malaysia Airlines should be brought in Malaysian courts.
  • In 2002, Congress amended the Animal Welfare Act to make clear that it applied to birds not bred for research, thereby requiring the USDA to promulgate regulations on the humane care and handling of such birds. However, to this day the USDA has issued no regulations. A violation of the Administrative Procedure Act? The case should not have been dismissed, says the D.C. Circuit.
  • After 30 years in prison for burglary and rape, North Carolina man discovers that prosecutors at his 1976 trial withheld (among other evidence) forensic results that did not link him to the crimes and a sample of the rapist’s semen. Fourth Circuit: The state courts reasonably determined that none of the withheld evidence would have had an impact on the man’s trial, so his convictions stand. Dissent: That is emphatically wrong. “[T]here is zero doubt in my mind that the cumulative effect of the suppressed evidence in this case” might well have had an impact on the trial.
  • Fourth Circuit: Virginia environmental officials must reconsider their decision to grant a permit to a pipeline company to build a compressor station (which would burn gas 24/7/365 days a year) in a historic community established by freed slaves after the Civil War. (Per Georgetown’s Civil Rights Clinic, it’s one of the few remaining Freedmen communities in the country.) Officials failed to properly consider how emissions from the station would impact the community.
  • After the University of Texas and San Antonio officials decide to remove Confederate monuments, the Sons of Confederate Veterans sue to keep the monuments in place. The claim? Removing the monuments violates our First Amendment rights because we like what the monuments stand for. Fifth Circuit: No standing. The First Amendment lets you sue to prevent suppression of your own speech, not any speech you happen to agree with.
  • Allegation: El Paso, Tex. woman is arrested on an outstanding warrant less than three days after undergoing leg surgery and while still confined to a wheelchair. Despite her physical therapist’s conclusion that she is not a candidate for crutches, jail officials take her wheelchair, require her to use crutches, and force her to carry her own food while using crutches, leading to a fall that aggravates her injuries and requires another surgery. Fifth Circuit: And that may well violate the Americans with Disabilities Act, though it’s not egregious enough to violate the Eighth Amendment.
  • For unknown reasons, unknown individuals jump out of a car and shoot at a Saginaw, Mich. restaurant. Can city officials shut down the restaurant because it was the target of a crime by unknown third parties? Two-thirds of this Sixth Circuit panel thinks maybe not.
  • Saginaw County, Mich. ordinance forbids all but one ambulance company from operating. “That’s unconstitutional!” says a second company, which starts providing services. Rather than enforce the ordinance, county officials wait six years to file a federal lawsuit asking the courts to declare that the monopoly isn’t unconstitutional after all. Which, says the Sixth Circuit ever so gently, is not a thing the government can do.
  • In a bizarre bid to defeat a client’s child porn prosecution, expert witness creates more child porn. (He manipulates photos of minors to show them having sex.) Sixth Circuit: This plan was malicious as a matter of law. So bankruptcy does not eliminate the minors’ $300k judgment against the expert.
  • Distasteful though it may be, holds the Sixth Circuit, a high school football coach does not violate Title IX by calling a player a “pussy.” (Although, suggests the dissent, he may commit intentional infliction of emotion distress.)
  • Tennessee state representative sexually harasses at least 22 women, is expelled from the legislature. His lifetime health benefits are terminated. Can he sue the officials who decided to terminate his benefits? His suit is not barred by sovereign immunity, says the Sixth Circuit.
  • Man spends three decades in prison for a double murder he did not commit after Peoria, Ill. police (allegedly) fabricated evidence and forced his confession when he was just 14 years old. He’s paroled in 2006, his sentence is commuted in 2011, and he’s pardoned in 2015. He sues the city within two years of the pardon. City: Too late! You should’ve sued once you were paroled. Seventh Circuit (en banc, over a dissent): Heck no. Central to his claims is that his conviction was invalid, so his conviction had to be invalidated before he could sue over them. And that didn’t happen until he was pardoned, so his case is timely.
  • Missouri, like many states, has a “three-tier system” of alcohol regulation that prohibits alcohol producers and distributors from having any financial interest in an alcohol retailer. Missouri officials interpret the law to prohibit alcohol producers and distributors from retail advertising. A First Amendment violation? Officials: No way! The statute doesn’t say anything about speech; it merely bans advertising. Eighth Circuit: … Oh, that’s it? We thought you were gonna keep going. No, that’s definitely unconstitutional.
  • Allegation: After meeting with his lawyer, Florida inmate is escorted back to his cell by a prison guard. The guard orders him to sit. Then stand. Then sit. Then stand. When the inmate asks what’s up, the guard pepper sprays him, slams him on the ground, pulls down his pants, and forces a finger up his anus. District Court: I don’t believe you. Summary judgment for the defendant. Eleventh Circuit: That’s the jury’s call, not yours. Also, we repudiate an earlier decision that suggested that maybe a little bit of sexual assault in prison is okay.
  • Then-U.S. congresswoman raises $800k for her charity, disburses only $1.2k for charitable purposes, spending the vast majority on personal expenses. At trial, the district court dismisses a juror who indicated during deliberations that he’d had a divine revelation that the congresswoman was not guilty on all counts. She’s convicted. Eleventh Circuit (over a dissent): The judge did not err by dismissing the juror. Dissent: The majority misunderstands “the vernacular of a substantial segment of our citizenry,” and its decision will permit eligible jurors who believe God speaks to them to be stricken from jury pools.
  • And in en banc news: Texas high court denies review of rape conviction, 50-year sentence but inexplicably fails to tell petitioner for eight months, causing him to miss deadline to seek review in federal court. He files his habeas petition eight days after learning of the denial. District court: Tough. You should’ve pursued your rights more diligently. Fifth Circuit: No, the court error gave rise to more time to pursue his deadline. And there’ll be no en banc rehearing, despite the protestations of Judge Smith who finds the state’s refusal to seek rehearing “astonishing” and the panel decision full of “obvious flaw[s]” (such as referring to the state as “the government,” a term “uniformly reserved” for the feds).
  • And in task force news: A Third Circuit task force studying the problem of mistaken eyewitnesses and wrongful convictions has issued a report recommending a commendable series of best practices for lineups, interviews, and more. (H/t to the inestimable CA3blog.)

Under the borough’s rental inspection ordinance, Pottstown, Penn. officials claim the authority to enter homes to inspect them for housing code violations without individualized probable cause and without consent from tenants or landlords. Which does not sit well with Dottie Rivera, who does not want officials poking through her perfectly well-maintained home, which she rents. So in 2017, Dottie, her husband, and their landlord joined forces with IJ to challenge the ordinance under the state constitution, which provides stronger protections against suspicionless searches and seizures than the U.S. Constitution. And this week, a state appeals court ruled, among other things, that residents need not submit to an inspection before they can challenge the ordinance. Click here to learn more.

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Brazilian Judge Blocks Gay Jesus Movie, Supreme Court Reverses

Reuters (Fabio Texeira) reported:

A Brazilian judge ordered the streaming entertainment service Netflix to stop showing a controversial movie depicting Jesus as a gay man, according to court documents made public on Wednesday.

In the ruling against Netflix, the state court judge said: “The right to freedom of expression … is not absolute.”

The First Temptation of Christ, created by Brazilian YouTube comedy group Porta dos Fundos, portrays Jesus bringing home a presumed boyfriend to meet his family.

The show, which started playing on Netflix last month as a Christmas special, has caused an uproar among Brazil’s conservative Christians.

Agence France-Presse has an update:

The head of the Supreme Federal Court, Judge Antonio Dias Toffoli, sided with the streaming platform’s appeal against a temporary injunction banning the movie….

“One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazlian citizens,” the judge said.

Unfortunately,

On Christmas Eve, the production company’s headquarters in Rio de Janeiro were attacked with Molotov cocktails. No one was hurt. Police said several men with their faces covered took part in the assault.

Police have identified a man named Eduardo Fauzi as a suspect after analyzing security camera footage. He fled to Russia.

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Adaptation of Stephen King’s The Outsider Swings Wildly in Tones

The Outsider. HBO. Sunday, January 12, 9 p.m.

If you have recurring nightmares of a world populated by drooling zombie clones of Stephen King, a word of caution: They may not be dreams at all.  By my admittedly addled count, King published 20 books during the past decade, while a dozen were adapted into movies and nine more into TV shows. And that’s not even counting King comic books, dolls, or the horde of mutant  Children Of The Corn spinoffs. (Still the nation weeps in rage at the false promise of 1992’s Children Of The Corn II: The Final Sacrifice.) And,  oh my God, is there more to come.

To say that Hollywood’s King-mania has been profligate and promiscuous is certainly not to say it’s been all bad.  Hulu’s miniseries adaptation 11.22.63, King’s tale of time travelers on Lee Harvey Oswald’s trail, made up in sheer, story-telling power, whatever it lacked in political acumen. AT&T’s Audience Channel turned King’s Mr. Mercedes trilogy into a riveting, post-modernist take on pulp detective novels. On the other hand, Spike’s remake of The Mist was so lobotomizingly awful that it killed off the entire network.

The Outsider, the latest float in the King parade, lies somewhere in the middle of this spectrum. Based on King’s 2018 novel, it’s a sort of kissing cousin to Mr. Mercedes (even borrowing a crossover character) in its blend of the horror and noir detective motifs. It’s a serious piece of work, with talented writers like Richard Price and Dennis Lehane doing the adaptation. But the result is curiously—and annoyingly—uneven, as if different production crews took over on alternate days undoing one another’s work.

The Outsider is yet another exploration of King’s favorite theme, the murder of children as an expression of the dissolution of the American family—in this case literally. Each killing of a child triggers an explosion of revenge murders and grief-stricken suicides that obliterates an entire family unit. It starts with the savage assault on a little Oklahoma boy, whose sodomized body, covered with human bite marks, is found in the woods. (King’s book was set in Oklahoma, but the show changes the scene to Georgia for the purely artistic reason that Georgia put up taxpayer subsidies for the production. The result is a murder mystery set in the heart of rural Dixie in which not a single character speaks with a Southern accent, typical of the schizoid cracks running through The Outsider.)

An obvious suspect emerges at once: Little League coach Terry Maitland (Jason Bateman, who also worked as a producer and director on the show). Maitland was seen offering the boy a ride, then emerging from the woods covered in blood. Eyewitnesses, security tapes and fingerprints weave a tapestry of evidence against Maitland so tight that local police chief Ralph Anderson (Ben Mendelsohn, Bloodline), now certain that his own baseball-playing son was molested, orders the coach arrested on the field during a championship game, raising local bloodlust to explosive levels.

But as the investigation continues, new witnesses and forensic evidence emerge to prove with equal certainty that Maitland was at a distant teachers’ conference when the murder occurred and couldn’t possibly have committed it. Anderson, baffled at seemingly irrefutable proof that the killer was two places at once, finds himself in an uneasy coalition with Maitland’s defense attorney Howie Gold (Bill Camp, The Night Of)  and wife Glory (Julianne Nicholson, Masters Of Sex) to find a rational explanation for a thoroughly irrational dilemma.

The first two episodes of The Outsider (there are 10 in all) closely follow King’s novel and are a model of what has made King so successful: His ability to keep one foot  grounded in recognizable reality while moving the other into parts unknown: vampires, werewolves, ESP, killer cars, gypsy-cursed pies. Richard Price’s long familiarity with the urban cop genre in works like Clockers and The Wire pays dividends even in a small-town-Georgia setting as the investigation unfolds.

Even so, those episodes are marred by cinephile gimcrackery gone amok. Bateman is quite capable in his acting as a regular guy who finds himself unaccountably accused of monstrous crimes. But as a director, he seems to have taken the concept of noir far too literally. Nearly every conversation seems to take place in a room lit like an unfinished basement, sometimes to the point that you can only guess about what’s happening and to whom.

And in the next two episodes, when Price’s writing departs from King’s story and Bateman’s direction departs from the land of the sane, The Outsider goes badly off-track. As if the literal darkness of his photography isn’t confusing enough, Bateman creates a metaphoric gloom by intercutting scenes too quickly and letting their audio bleed into one another, escalating the degree of incomprehensibility from “what the hell?” to “what the fuck?” Even worse, Price needlessly messes with the most interesting character in King’s novel, the Mr. Mercedes crossover Holly Gibney. In the book, Gibney is a kind of accidental detective, a relative of a mass-murder victim whose obsessive-compulsive disorder and mild autism give her unexpected powers of concentration, and whose stuttering diffidence consistently leads her opponents to underestimate her. (She’s played to perfection by Justine Lupe in the AT&T Mr. Mercedes shows.) She operates a one-person office in a small town in Ohio that specializes in tracing credit-card skippers, and she enters The Outsider story only because Anderson needs somebody local to track down a minor loose end in Dayton.

But in The Outsider, Gibney has mutated into a Chicago investigative prodigy whose near-superpowers make her come across as an arrogant bully rather than a broken waif. And there’s simply no plausible explanation why the best detective in Chicago would agree to take on a minor angle of a case from Middle-of-Nowhere, Georgia. Predictably, the change of persona sets off ripples in the plot, which jarringly turns from rural gothic to urban grit in the blink of an eye. Cynthia Erivo, who plays Gibney here, is a talented actress (as she proved in the title role of Harriet Tubman), but her role in The Outsider is badly misconceived.

By the fourth episode (all that I watched), the wild ricocheting styles and showoff directorial stunts have badly distracted from both The Outsider‘s storytelling and its intellectual point, which is that the world’s pedicide folktales, from Hansel and Gretel to Slenderman,  may reflect something deeper and more disturbing about human cultures than we want to contemplate. Whether the show can get back on track in its remaining episodes is a dubious proposition. If not, it certainly will have wasted excellent performances by Mendelsohn, who resonates with guilt and shame over the police chief’s botched investigation, and Nicholson, who glows white-hot with rage over what happened to her husband. And its epitaph is likely to be found in another of King’s works, the collection of novellas Different Seasons. A novelist character in that book mourns a failed short story: “It’s not a very good story—its author was too busy listening to other voices to listen as closely as he should have to the one coming from inside.”

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

State restrictions on selling homemade food items often serve no public health and safety interest and prevent people—disproportionately women from poor and rural areas—from earning an honest living. Read more about North Dakota’s recent crackdown on food freedom in USA Today from IJ staffers Jennifer McDonald and Daryl James.

  • In 2014, a commercial flight en route to Beijing disappears over the southern Indian Ocean. All 239 passengers and crew, including three Americans, presumed dead. An investigation yields little insight as to the cause. And, says the D.C. Circuit, the district court did not err in holding that claims against Boeing and Malaysia Airlines should be brought in Malaysian courts.
  • In 2002, Congress amended the Animal Welfare Act to make clear that it applied to birds not bred for research, thereby requiring the USDA to promulgate regulations on the humane care and handling of such birds. However, to this day the USDA has issued no regulations. A violation of the Administrative Procedure Act? The case should not have been dismissed, says the D.C. Circuit.
  • After 30 years in prison for burglary and rape, North Carolina man discovers that prosecutors at his 1976 trial withheld (among other evidence) forensic results that did not link him to the crimes and a sample of the rapist’s semen. Fourth Circuit: The state courts reasonably determined that none of the withheld evidence would have had an impact on the man’s trial, so his convictions stand. Dissent: That is emphatically wrong. “[T]here is zero doubt in my mind that the cumulative effect of the suppressed evidence in this case” might well have had an impact on the trial.
  • Fourth Circuit: Virginia environmental officials must reconsider their decision to grant a permit to a pipeline company to build a compressor station (which would burn gas 24/7/365 days a year) in a historic community established by freed slaves after the Civil War. (Per Georgetown’s Civil Rights Clinic, it’s one of the few remaining Freedmen communities in the country.) Officials failed to properly consider how emissions from the station would impact the community.
  • After the University of Texas and San Antonio officials decide to remove Confederate monuments, the Sons of Confederate Veterans sue to keep the monuments in place. The claim? Removing the monuments violates our First Amendment rights because we like what the monuments stand for. Fifth Circuit: No standing. The First Amendment lets you sue to prevent suppression of your own speech, not any speech you happen to agree with.
  • Allegation: El Paso, Tex. woman is arrested on an outstanding warrant less than three days after undergoing leg surgery and while still confined to a wheelchair. Despite her physical therapist’s conclusion that she is not a candidate for crutches, jail officials take her wheelchair, require her to use crutches, and force her to carry her own food while using crutches, leading to a fall that aggravates her injuries and requires another surgery. Fifth Circuit: And that may well violate the Americans with Disabilities Act, though it’s not egregious enough to violate the Eighth Amendment.
  • For unknown reasons, unknown individuals jump out of a car and shoot at a Saginaw, Mich. restaurant. Can city officials shut down the restaurant because it was the target of a crime by unknown third parties? Two-thirds of this Sixth Circuit panel thinks maybe not.
  • Saginaw County, Mich. ordinance forbids all but one ambulance company from operating. “That’s unconstitutional!” says a second company, which starts providing services. Rather than enforce the ordinance, county officials wait six years to file a federal lawsuit asking the courts to declare that the monopoly isn’t unconstitutional after all. Which, says the Sixth Circuit ever so gently, is not a thing the government can do.
  • In a bizarre bid to defeat a client’s child porn prosecution, expert witness creates more child porn. (He manipulates photos of minors to show them having sex.) Sixth Circuit: This plan was malicious as a matter of law. So bankruptcy does not eliminate the minors’ $300k judgment against the expert.
  • Distasteful though it may be, holds the Sixth Circuit, a high school football coach does not violate Title IX by calling a player a “pussy.” (Although, suggests the dissent, he may commit intentional infliction of emotion distress.)
  • Tennessee state representative sexually harasses at least 22 women, is expelled from the legislature. His lifetime health benefits are terminated. Can he sue the officials who decided to terminate his benefits? His suit is not barred by sovereign immunity, says the Sixth Circuit.
  • Man spends three decades in prison for a double murder he did not commit after Peoria, Ill. police (allegedly) fabricated evidence and forced his confession when he was just 14 years old. He’s paroled in 2006, his sentence is commuted in 2011, and he’s pardoned in 2015. He sues the city within two years of the pardon. City: Too late! You should’ve sued once you were paroled. Seventh Circuit (en banc, over a dissent): Heck no. Central to his claims is that his conviction was invalid, so his conviction had to be invalidated before he could sue over them. And that didn’t happen until he was pardoned, so his case is timely.
  • Missouri, like many states, has a “three-tier system” of alcohol regulation that prohibits alcohol producers and distributors from having any financial interest in an alcohol retailer. Missouri officials interpret the law to prohibit alcohol producers and distributors from retail advertising. A First Amendment violation? Officials: No way! The statute doesn’t say anything about speech; it merely bans advertising. Eighth Circuit: … Oh, that’s it? We thought you were gonna keep going. No, that’s definitely unconstitutional.
  • Allegation: After meeting with his lawyer, Florida inmate is escorted back to his cell by a prison guard. The guard orders him to sit. Then stand. Then sit. Then stand. When the inmate asks what’s up, the guard pepper sprays him, slams him on the ground, pulls down his pants, and forces a finger up his anus. District Court: I don’t believe you. Summary judgment for the defendant. Eleventh Circuit: That’s the jury’s call, not yours. Also, we repudiate an earlier decision that suggested that maybe a little bit of sexual assault in prison is okay.
  • Then-U.S. congresswoman raises $800k for her charity, disburses only $1.2k for charitable purposes, spending the vast majority on personal expenses. At trial, the district court dismisses a juror who indicated during deliberations that he’d had a divine revelation that the congresswoman was not guilty on all counts. She’s convicted. Eleventh Circuit (over a dissent): The judge did not err by dismissing the juror. Dissent: The majority misunderstands “the vernacular of a substantial segment of our citizenry,” and its decision will permit eligible jurors who believe God speaks to them to be stricken from jury pools.
  • And in en banc news: Texas high court denies review of rape conviction, 50-year sentence but inexplicably fails to tell petitioner for eight months, causing him to miss deadline to seek review in federal court. He files his habeas petition eight days after learning of the denial. District court: Tough. You should’ve pursued your rights more diligently. Fifth Circuit: No, the court error gave rise to more time to pursue his deadline. And there’ll be no en banc rehearing, despite the protestations of Judge Smith who finds the state’s refusal to seek rehearing “astonishing” and the panel decision full of “obvious flaw[s]” (such as referring to the state as “the government,” a term “uniformly reserved” for the feds).
  • And in task force news: A Third Circuit task force studying the problem of mistaken eyewitnesses and wrongful convictions has issued a report recommending a commendable series of best practices for lineups, interviews, and more. (H/t to the inestimable CA3blog.)

Under the borough’s rental inspection ordinance, Pottstown, Penn. officials claim the authority to enter homes to inspect them for housing code violations without individualized probable cause and without consent from tenants or landlords. Which does not sit well with Dottie Rivera, who does not want officials poking through her perfectly well-maintained home, which she rents. So in 2017, Dottie, her husband, and their landlord joined forces with IJ to challenge the ordinance under the state constitution, which provides stronger protections against suspicionless searches and seizures than the U.S. Constitution. And this week, a state appeals court ruled, among other things, that residents need not submit to an inspection before they can challenge the ordinance. Click here to learn more.

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Brazilian Judge Blocks Gay Jesus Movie, Supreme Court Reverses

Reuters (Fabio Texeira) reported:

A Brazilian judge ordered the streaming entertainment service Netflix to stop showing a controversial movie depicting Jesus as a gay man, according to court documents made public on Wednesday.

In the ruling against Netflix, the state court judge said: “The right to freedom of expression … is not absolute.”

The First Temptation of Christ, created by Brazilian YouTube comedy group Porta dos Fundos, portrays Jesus bringing home a presumed boyfriend to meet his family.

The show, which started playing on Netflix last month as a Christmas special, has caused an uproar among Brazil’s conservative Christians.

Agence France-Presse has an update:

The head of the Supreme Federal Court, Judge Antonio Dias Toffoli, sided with the streaming platform’s appeal against a temporary injunction banning the movie….

“One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazlian citizens,” the judge said.

Unfortunately,

On Christmas Eve, the production company’s headquarters in Rio de Janeiro were attacked with Molotov cocktails. No one was hurt. Police said several men with their faces covered took part in the assault.

Police have identified a man named Eduardo Fauzi as a suspect after analyzing security camera footage. He fled to Russia.

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Adaptation of Stephen King’s The Outsider Swings Wildly in Tones

The Outsider. HBO. Sunday, January 12, 9 p.m.

If you have recurring nightmares of a world populated by drooling zombie clones of Stephen King, a word of caution: They may not be dreams at all.  By my admittedly addled count, King published 20 books during the past decade, while a dozen were adapted into movies and nine more into TV shows. And that’s not even counting King comic books, dolls, or the horde of mutant  Children Of The Corn spinoffs. (Still the nation weeps in rage at the false promise of 1992’s Children Of The Corn II: The Final Sacrifice.) And,  oh my God, is there more to come.

To say that Hollywood’s King-mania has been profligate and promiscuous is certainly not to say it’s been all bad.  Hulu’s miniseries adaptation 11.22.63, King’s tale of time travelers on Lee Harvey Oswald’s trail, made up in sheer, story-telling power, whatever it lacked in political acumen. AT&T’s Audience Channel turned King’s Mr. Mercedes trilogy into a riveting, post-modernist take on pulp detective novels. On the other hand, Spike’s remake of The Mist was so lobotomizingly awful that it killed off the entire network.

The Outsider, the latest float in the King parade, lies somewhere in the middle of this spectrum. Based on King’s 2018 novel, it’s a sort of kissing cousin to Mr. Mercedes (even borrowing a crossover character) in its blend of the horror and noir detective motifs. It’s a serious piece of work, with talented writers like Richard Price and Dennis Lehane doing the adaptation. But the result is curiously—and annoyingly—uneven, as if different production crews took over on alternate days undoing one another’s work.

The Outsider is yet another exploration of King’s favorite theme, the murder of children as an expression of the dissolution of the American family—in this case literally. Each killing of a child triggers an explosion of revenge murders and grief-stricken suicides that obliterates an entire family unit. It starts with the savage assault on a little Oklahoma boy, whose sodomized body, covered with human bite marks, is found in the woods. (King’s book was set in Oklahoma, but the show changes the scene to Georgia for the purely artistic reason that Georgia put up taxpayer subsidies for the production. The result is a murder mystery set in the heart of rural Dixie in which not a single character speaks with a Southern accent, typical of the schizoid cracks running through The Outsider.)

An obvious suspect emerges at once: Little League coach Terry Maitland (Jason Bateman, who also worked as a producer and director on the show). Maitland was seen offering the boy a ride, then emerging from the woods covered in blood. Eyewitnesses, security tapes and fingerprints weave a tapestry of evidence against Maitland so tight that local police chief Ralph Anderson (Ben Mendelsohn, Bloodline), now certain that his own baseball-playing son was molested, orders the coach arrested on the field during a championship game, raising local bloodlust to explosive levels.

But as the investigation continues, new witnesses and forensic evidence emerge to prove with equal certainty that Maitland was at a distant teachers’ conference when the murder occurred and couldn’t possibly have committed it. Anderson, baffled at seemingly irrefutable proof that the killer was two places at once, finds himself in an uneasy coalition with Maitland’s defense attorney Howie Gold (Bill Camp, The Night Of)  and wife Glory (Julianne Nicholson, Masters Of Sex) to find a rational explanation for a thoroughly irrational dilemma.

The first two episodes of The Outsider (there are 10 in all) closely follow King’s novel and are a model of what has made King so successful: His ability to keep one foot  grounded in recognizable reality while moving the other into parts unknown: vampires, werewolves, ESP, killer cars, gypsy-cursed pies. Richard Price’s long familiarity with the urban cop genre in works like Clockers and The Wire pays dividends even in a small-town-Georgia setting as the investigation unfolds.

Even so, those episodes are marred by cinephile gimcrackery gone amok. Bateman is quite capable in his acting as a regular guy who finds himself unaccountably accused of monstrous crimes. But as a director, he seems to have taken the concept of noir far too literally. Nearly every conversation seems to take place in a room lit like an unfinished basement, sometimes to the point that you can only guess about what’s happening and to whom.

And in the next two episodes, when Price’s writing departs from King’s story and Bateman’s direction departs from the land of the sane, The Outsider goes badly off-track. As if the literal darkness of his photography isn’t confusing enough, Bateman creates a metaphoric gloom by intercutting scenes too quickly and letting their audio bleed into one another, escalating the degree of incomprehensibility from “what the hell?” to “what the fuck?” Even worse, Price needlessly messes with the most interesting character in King’s novel, the Mr. Mercedes crossover Holly Gibney. In the book, Gibney is a kind of accidental detective, a relative of a mass-murder victim whose obsessive-compulsive disorder and mild autism give her unexpected powers of concentration, and whose stuttering diffidence consistently leads her opponents to underestimate her. (She’s played to perfection by Justine Lupe in the AT&T Mr. Mercedes shows.) She operates a one-person office in a small town in Ohio that specializes in tracing credit-card skippers, and she enters The Outsider story only because Anderson needs somebody local to track down a minor loose end in Dayton.

But in The Outsider, Gibney has mutated into a Chicago investigative prodigy whose near-superpowers make her come across as an arrogant bully rather than a broken waif. And there’s simply no plausible explanation why the best detective in Chicago would agree to take on a minor angle of a case from Middle-of-Nowhere, Georgia. Predictably, the change of persona sets off ripples in the plot, which jarringly turns from rural gothic to urban grit in the blink of an eye. Cynthia Erivo, who plays Gibney here, is a talented actress (as she proved in the title role of Harriet Tubman), but her role in The Outsider is badly misconceived.

By the fourth episode (all that I watched), the wild ricocheting styles and showoff directorial stunts have badly distracted from both The Outsider‘s storytelling and its intellectual point, which is that the world’s pedicide folktales, from Hansel and Gretel to Slenderman,  may reflect something deeper and more disturbing about human cultures than we want to contemplate. Whether the show can get back on track in its remaining episodes is a dubious proposition. If not, it certainly will have wasted excellent performances by Mendelsohn, who resonates with guilt and shame over the police chief’s botched investigation, and Nicholson, who glows white-hot with rage over what happened to her husband. And its epitaph is likely to be found in another of King’s works, the collection of novellas Different Seasons. A novelist character in that book mourns a failed short story: “It’s not a very good story—its author was too busy listening to other voices to listen as closely as he should have to the one coming from inside.”

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Connecticut Racial Ridicule Prosecution: One Student Agrees to Probation, the Other’s Case Is Still Pending

According to the Hartford Courant (David Owens),

One of two UConn students charged with yelling racial slurs [in particular, “nigger” -EV] outside a university apartment complex was granted a special form of probation Tuesday that could result in the charge against him being dismissed.

Jarred Karal, 21, of Plainville, will be on probation for six months and must complete 20 hours of community service and undergo diversity and bias training. Rockville Superior Court Judge James Sicilian approved Karal’s application for accelerated rehabilitation, finding that his offense was not of a serious nature and that it was unlikely Karal would offend again.

As I argued in this New York Daily News article, the statute is unconstitutional, and on its face not even applicable to the speech here; but I can understand why a defendant might prefer to make the case go away quickly rather than fighting. The other student, though, seems not to have made any such deal; I hope to know more soon about whether he’ll be challenging the constitutionality of the prosecution.

Here, in the meantime, is a quick summary of the problems with the statute:

[1.] Connecticut General Statutes § 53-37 (which, oddly enough, is listed in some Connecticut government documents under the “affirmative action” category, as in this Affirmative Action Policy Statement and this Affirmative Action—Laws List) provides:

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

And, as best we can tell, prosecutors have averaged a bit over one conviction per year under the statute from 2000 to 2016, and in 2017 they had four prosecutions—two that were dropped, and two that were still pending as of the end of 2017. (Because records of prosecutions that don’t lead to convictions are purged fairly promptly, I can’t get information on unsuccessful prosecutions in past years.)

[2.] The statute, though, is pretty obviously unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception for speech that insults based on race or religion. Beauharnais v. Illinois (1952) did uphold a “group libel” statute that banned derogatory statements about racial and religious groups, but that decision is widely and rightly regarded as obsolete, given the last 50 years of First Amendment jurisprudence. The only part of Beauharnais that likely survives is its general conclusion that there is a libel exception to the First Amendment; since then, that exception has been dramatically narrowed. As the Court has repeatedly held, racist and religiously bigoted speech is as constitutionally protected as speech that expresses other ideas.

But it turns out that Connecticut prosecutors aren’t enforcing the law as it is written. I have found no prosecutions for advertisements that ridicule people based on race or religion—not for commercial advertisements (which in any event would be pretty bad for business these days) and not for political advertisements.

Rather, based on the 13 police reports that I’ve read, prosecutors seem to be enforcing the statute to punish people for race- or religion-based “fighting words”: generally speaking, face-to-face personal insults that include racial or religious slurs. (The facts of the cases are a mix: Three involved racial insults of police officers, one case with anti-white insults and another with anti-black insults. The other ten mostly involved insults of black ordinary citizens, though one was of a Hispanic, one of someone perceived to be Muslim, and one of an ambiguously labeled “nigga cracker.” The defendants were mostly whites, but two were likely Hispanic and one was black.)

Now that might be less troubling than trying to punish, say, political advertisements. But is itself unconstitutional, for three related reasons.

[A.] First, such insults may be offensive and empty of serious arguments, but they aren’t advertisements, under any definition of the word “advertisement.” The convicted defendants are not guilty of the crime they were charged with, given the plain text of the statute. And there are no appellate decisions reinterpreting the text of the statute (as there are for some statutes), so the defendants weren’t guilty under either the law as written or the law as authoritatively construed. Indeed, the one nonprecedential decision I could find, National Socialist White People’s Party v. Southern New England Telephone Co. (D. Mass. 1975) (3-judge court), and the one decision cited in that case, State v. Jensen (Conn. Cir. Ct. 1969), read the statute—consistently with its text—as genuinely limited to “advertisements.”

Yet a 2008 report from the Connecticut legislature’s Office of Legislative Research and a 2014 East Haven Police Department manual describe the statute simply as covering “ridicul[ing] any person or class of people on account of creed, religion, color, denomination, nationality, or race,” likewise dropping the “advertisement” requirement. The prosecutors in the cases cited above for which I’ve seen arrest reports (more than half of the list) likewise seem to be ignoring that requirement.

[B.] Even if prosecutors are reading the state as only banning race- or religion-based fighting words—contrary to its text—there’s no reason to think that all the judges are reading it that way, or will read it that way. Some guilty verdicts might thus easily be entered without the judges finding beyond a reasonable doubt that the speech constituted fighting words. Indeed, this very case involves speech that is unlikely to be viewed as “fighting words,” since that narrow First Amendment exception is limited to “personally abusive epithets” that are “directed to the person of the hearer”; these words weren’t directed to any particular person.

[C.] But even if the statute were somehow read as banning race- or religion-based fighting words—contrary to its text—there’s a Supreme Court decision squarely holding such statutes unconstitutional: R.A.V. v. City of St. Paul (1992). R.A.V. struck down a ban on those fighting words that “arouse[] anger, alarm or resentment in others” based on, among other things, race or religion; this statute seems to be read as a ban on those fighting words that “ridicule[] or hold[] up to contempt any person or class of persons” based on, race, religion, or nationality. The words of R.A.V. apply just as well to this statute: Even assuming that “all of the expression reached by the [statute] is proscribable under the ‘fighting words’ doctrine,” the statute “is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

The 1999 “Hate Speech on the Internet” report from the Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But a 2008 report written by the same lawyer doesn’t include that note.

[3.] One might ask: Why hadn’t defense lawyers objected to this earlier, or appealed the cases? (I could find no appellate decisions that mention the statute.)

I suspect some defense lawyers are objecting, and some (perhaps many) prosecutors aren’t bringing charges because they realize the statute is unconstitutional. Other defense lawyers might agree to charges under the statute as part of a plea bargain that they think is better for their clients, if in the absence of these charges the clients might have faced more serious ones (or more serious sentences on other accompanying charges). Still others might not recognize the First Amendment problems. I’ve tried digging a bit, and ran into lawyers’ normal tendency to keep quiet.

[4.] A few historical points. First, the statute was enacted in 1917, and the act that passed it was titled “An Act concerning Discrimination at Places of Public Accommodation.” It really was aimed at “advertisement[s]” for businesses, not at (say) KKK rallies or the like.

Second, the reference to “creed” seems to refer to religion, perhaps to make clear (together with “denomination”) that all religious discrimination was covered (e.g., so people can’t say “I’m not contemptuous of Catholics, but only of people who believe in adherence to the Pope”), or perhaps because of the lawyer’s habit of using multiple synonyms for the same thing (which might itself stem from a desire to avoid any inadvertent gaps in coverage).

Certainly the cases from the early and mid-1900s confirm that, and modern cases also take the same view: “The word ‘creed’ has a definite meaning, as a formal declaration of religious belief.” Hammer v. State (Ind. 1909). “In my opinion the [New York] Legislature in [a law banning housing discrimination] used the words ‘creed’ and ‘religion’ interchangeably. I cannot subscribe to the argument of the petitioners that the word ‘creed’ may refer to any beliefs, be they economic, political or sociological. Viewed in the light of the history of the statute, the evils it intended to cure, and its constitutional forerunner, I hold that ‘creed’ means religious belief.” Cummings v. Weinfeld (N.Y. trial ct. 1941). “The rubric ‘race, color, creed or religion’ … has attained too fixed a meaning to permit political groups to be brought within it.” Beauharnais v. Illinois (1952) (which I think is good evidence of the legal meaning of the term at the time, even though its constitutional analysis is not consistent with more recent precedents).

Continue reading “Connecticut Racial Ridicule Prosecution: One Student Agrees to Probation, the Other’s Case Is Still Pending”

An NYPD Cop Was Sentenced to a Day in Jail for a Lie That Nearly Doomed a Man to 15 Years in Prison

Michael Bergmann of the New York Police Department (NYPD) testified that Pedro Barbosa intentionally attempted to run him over with his vehicle. Barbosa faced a minimum of 15 years in prison if convicted. When video surveillance didn’t match the officer’s story, Bergmann was indicted for perjury. This week, a judge sentenced him to one day in jail and four years probation.

The Washington Post reports that Barbosa has struggled with drugs; thanks to a series of possession arrests, he lost his job, his ability to pay child support, and, finally, his driver’s license. In a low moment, Barbosa stole rolls of quarters to purchase drugs. Bergmann and Barbosa were well-acquainted with each other, and a contentious relationship grew out of Bergmann’s rather obsessive desire to get Barbosa off the streets.

Scott Hechinger, senior attorney at the Brooklyn Defender Services and Barbosa’s public defender, says Bergmann followed Barbosa around and stopped him multiple times in an effort to implicate him in a crime. Bergmann was unsuccessful each time.

Their paths crossed once again after midnight on February 1, 2019. When Barbosa parked his car on the street, Bergmann and an unnamed NYPD officer pulled up beside him, knowing he had a suspended license. Barbosa recognized Bergmann and drove off.

Bergmann’s version of events is more dramatized. In his story, he and his partner exited their SUV. Barbosa then allegedly reversed his car quickly, purposefully positioned the car where Bergmann was between the headlights, and slammed on the gas to try to run him over. Bergmann claimed that he managed to jump out of the way before he was hit, landing on the ground and scratching his elbow.

Bergmann not only included this tale in his police report but swore before a jury that his account was true. Painted as a violent offender, Barbosa was convicted of attempted assault in the first degree.

Fortunately for Barbosa, surveillance footage from a mechanic shop captured the interaction.

Hechinger wrote a motion to dismiss the charges and sent both the motion and the footage to the prosecutor. “He was speechless,” Hechinger recalls. The prosecutor was appalled that Bergmann lied about “something so egregious.” 

As a result, Bergmann was charged with perjury and pleaded guilty. He was also fired.

This week Judge Danny Chun sentenced Bergmann to a single day in jail, which he has already served, plus four years probation. Prosecutors initially asked for a sentence of a year in jail. The district attorney’s office believed they would have better luck getting Chun to agree to six months in jail. Regardless, Chun considered six months “unduly harsh.”

So one day in jail plus probation for a lie that nearly cost a man 15 years of his life. Contrast that with the fate of low-income people trapped behind bars because of expensive pre-trial bail. Though the law considers them innocent until proven guilty, they often spend far more time in jail than Bergmann while waiting for their day in court. In one infamous case, Kalief Browder spent three years in Rikers Island without a trial because his bail was set at an unaffordable $3,000.

“It isn’t that I wish greater harshness,” Hechinger says. “It’s that I wish that the majority of the people coming through the system—mostly poor people, predominantly black and Latino—were treated with the same kind of individualized justice, due process, and care and consideration for their lives that police officers are.”

This may be a pattern with Chun. Hechinger has tweeted several examples of the judge sentencing NYPD officers to probation for such offenses as having sex with a teen in exchange for her freedom, shooting a man in the mouth out of jealousy and then tampering with the evidence, and shooting a man who was walking in a stairwell.

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US Rebuffs Iraq PM Request To Talk Troop Exit: It’s “Our Right” As A “Force For Good” To Stay

US Rebuffs Iraq PM Request To Talk Troop Exit: It’s “Our Right” As A “Force For Good” To Stay

Perhaps entirely to be expected, the US administration has unambiguously rejected Iraqi Prime Minister Adel Abdul-Mahdi’s urgent call for Washington to enact a US troop ‘withdrawal mechanism’ in Iraq. In a Thursday phone call to Secretary of State Mike Pompeo, the Iraqi leader urged the administration to “send delegates to Iraq to prepare a mechanism to carry out the parliament’s resolution regarding the withdrawal of foreign troops from Iraq.”

Echoing prior statements of Mark Esper, the State Department underscored Friday that it’s “our right” as a “force for good” in the region to maintain “appropriate force posture in the Middle East” in a statement by spokesperson Morgan Ortagus. She stated the US considers that a troop pullout is not on the table for discussion with Baghdad officials.

“At this time, any delegation sent to Iraq would be dedicated to discussing how to best recommit to our strategic partnership — not to discuss troop withdrawal, but our right, appropriate force posture in the Middle East,” Ortagus said. The words also appear aimed at Abdul-Mahdi’s assertion that US forces were operating “without permission”.

Secretary of State Mike Pompeo during a prior Middle East tour in early 2019, via the AP.

“America is a force for good in the Middle East,” she added. “Our military presence in Iraq is to continue the fight against ISIS and as the Secretary has said, we are committed to protecting Americans, Iraqis, and our coalition partners.”

And yet President Trump has previously declared the total demise of the Islamic State’s “territorial caliphate” — which has long been the main rationale for the Pentagon being there. 

According to most estimates the US troop presence numbers around 5,000, which the Iraqi PM would like to see exit following a vote in Iraqi parliament early this week pushing through an initial non-binding resolution. Abdul-Mahdi requested that a US delegation be sent to Baghdad work out a precise plan for major US pullout. 

“The prime minister said American forces had entered Iraq and drones are flying in its airspace without permission from Iraqi authorities and this was a violation of the bilateral agreements,” the Iraqi leader’s statement said.

According to Axios, US officials attempted to halt the weekend Iraq parliament vote to expel American forces. “It’s our concern that Iraq would take a short-term decision that would have catastrophic long-term implications for the country and its security,” one unnamed Trump administration official was quoted as saying. 

“But it’s also, what would happen to them financially,” the official told Axios. “If they allowed Iran to take advantage of their economy to such an extent that they would fall under the sanctions that are on Iran?”

The supreme irony in all this is that seventeen years after Bush declared the “liberation” of the Iraqi people after his 2003 invasion, this is apparently what US-imposed “democracy” looks like — Washington issuing dictates on how to run the country from thousands of miles away, coupled with threat of sanctions if Baghdad doesn’t comply.


Tyler Durden

Fri, 01/10/2020 – 15:20

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Politics
War Conflict

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America’s Climate-Friendly E-Scooter Carnage

America’s Climate-Friendly E-Scooter Carnage

Authored by Eric Worrall via WattsUpWithThat.com,

Climate friendly urban e-scooters have caused a 365% surge in hospital admissions, according to a recently published UCSF Study. And an increase in CO2 emissions.

Eggheads have crunched the numbers and the results are in: It’s not just your dignity you lose with e-scooters, life and limb are in peril, too

If you’re thinking of riding one of those things, wear a helmet

By Katyanna Quach 8 Jan 2020 at 21:39

There were nearly 40,000 electric scooter injuries in the United States between 2014 and 2018, according to a study published in the journal JAMA Surgery on Wednesday.

Specifically, in 2014, there were 4,582 injuries, and by 2018, that annual figure stood at 14,651 – that’s a 222 per cent surge over the four-year period.

The number of hospital admissions from accidents also skyrocketed to almost 3,300, a surge of 365 per cent, over the same period. The survey, conducted by researchers at UC San Francisco, analyzed data taken from the National Electronic Injury Surveillance System, a project led by the US Consumer Product Safety Commission to monitor the safety of consumer gizmos.

…

Read more: https://www.theregister.co.uk/2020/01/08/electric_scooter_injuries/

The abstract of the study;

The e-merging e-pidemic of e-scooters  

Leslie M Kobayashi, Elliot Williams, Carlos V Brown, Brent J Emigh, Vishal Bansal, Jayraan Badiee, Kyle D Checchi, Edward M Castillo, Jay Doucet

Introduction Since their release in 2017, standing electric motorized scooters (eScooters) have risen in popularity as an alternative mode of transportation. We sought to examine the incidence of injury, injury patterns, prevalence of helmet and drug and alcohol use in eScooter trauma.

Methods This was a multi-institutional retrospective case series of patients admitted for injuries related to operation of an eScooter following the widespread release of these devices in September 2017 (September 1, 2017 to October 31, 2018). Demographics, drug and alcohol use, helmet use, admission vitals, injuries, procedures, hospital and intensive care unit length of stay (LOS), death, and disposition were analyzed.

Results 103 patients were admitted during the study period, and monthly admissions increased significantly over time. Patients were young men (mean age 37.1 years; 65% male), 98% were not wearing a helmet. Median LOS was 1 day (IQR 1–3). 79% of patients were tested for alcohol and 48% had a blood alcohol level >80 mg/dL. 60% of patients had a urine toxicology screen, of which 52% were positive. Extremity fractures were the most frequent injury (42%), followed by facial fractures (26%) and intracranial hemorrhage (18%). Median Injury Severity Score was 5.5 (IQR 5–9). One-third of patients (n=34) required an operative intervention, the majority of which were open fixations of extremity and facial fractures. No patients died during the study. The majority of patients were discharged home (86%).

Conclusion eScooter-related trauma has significantly increased over time. Alcohol and illicit substance use among these patients was common, and helmet use was extremely rare. Significant injuries including intracranial hemorrhage and fractures requiring operative intervention were present in over half (51%) of patients. Interventions aimed at increasing helmet use and discouraging eScooter operation while intoxicated are necessary to reduce the burden of eScooter-related trauma.

Read more: https://tsaco.bmj.com/content/4/1/e000337

OK, so we have lots of drunk, drug crazed people zipping about causing serious accidents.

But what about the e-scooter’s green credentials?

How green are dockless e-scooters? 

By JOSHUA EMERSON SMITH NOV. 5, 2019 7:48 PM

Dockless e-scooter companies have for roughly two years touted their devices as not only convenient but also a win for the environment.

But a growing body of research suggests that the scooter craze may not be as green as advertised.

To change that, experts say, companies such as Lime, Bird and Wheels must manufacture more robust e-scooters while riders need to increasingly use those devices in lieu of driving. According to studies, many people are cruising around on e-scooters as an alternative to cleaner forms of transportation, such as biking, walking and taking the bus.

Still, experts say the fast-evolving industry has the potential to revolutionize urban travel and significantly reduce planet-warming emissions.

…

Data starting to emerge from cities around the country seem to contradict that testimony. About 40% of scooter rides have replaced biking or walking trips in San Francisco and Portland, Ore., according to recent municipal surveys.

A survey from Paris was even more grim, finding that 85% of scooter rides replaced either walking, biking or public transit trips.

…

Read more: https://www.latimes.com/california/story/2019-11-05/how-green-are-dockless-e-scooters

Lots of drunk, drug crazed people zipping about causing serious accidents, and they’re not even saving the planet.

Perhaps it is time for cities to consider scaling back their e-scooter programmes.


Tyler Durden

Fri, 01/10/2020 – 15:08

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Health Medical Pharma

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