A treatise on Swedish civil procedure, a law school textbook, a new journal for law student writers—such accomplishments might seem important only in the cloistered world of law professors. In fact, they were some of the first ways that Ruth Bader Ginsburg began to change the law.
As a law professor, Ginsburg led the creation of the field of women’s studies in law. Her first step in doing so took her to Sweden.
She graduated from Columbia Law School, first in her class, in 1959. After she clerked for a federal district judge, she was hired by Columbia for an international law project. In conjunction with a Swedish scholar, she wrote “Civil Procedure in Sweden,” published in 1965 by a Dutch academic press (Martinus Nijhoff).To study Swedish law, Ginsburg learned Swedish.
One reviewer, in the Kentucky Law Journal (pdf), found the book “so well written that it makes not only profitable, instructive, at times even revealing reading, but … also interesting. Certainly, one does not expect this kind of book in the field of civil procedure.” Other reviewers liked the Swedish book, too, and it’s still cited by courts and scholars today.
As part of the research, professor Ginsburg traveled to Sweden. There, she was inspired to see that 20 to 25 percent of law students were women.
While the Swedish book was in progress, she was hired by Rutgers Law School in 1963 to teach civil procedure. As a scholar, judge, and justice, she would become renowned for the clarity of her explanations of complex questions in civil procedure.
The law school tenure standard of the time was writing two law review articles. Hers, both on civil procedure, appeared in the Harvard and Columbia law reviews.
A Needed Textbook
Professor Ginsburg’s second book aimed to do more than make Swedish law accessible to English-reading scholars. The new book would make women’s rights accessible to law professors, law students, and lawyers.
What law students learn depends on what professors can teach. Teaching depends on what textbooks exist. Although some professors do collect or write their own materials for class, most of what gets taught in law school is from textbooks. Only if a textbook on women’s rights existed could women’s rights be broadly studied in law school.
By 1971 there were professors who sympathized with women’s rights, but were far from expert on the subject. They could teach it only if someone else wrote a textbook. They had neither the time nor inclination to determine which cases and materials were most important, collect and edit them, and then organize them into an orderly narrative. So Ginsburg did it all for them. She also provided her own analysis.
Ginsburg’s “Materials on Sex-based Discrimination and the Law” was published in 1971. The front matter describes it as a “preliminary draft.” Another version was titled “Constitutional Aspects of Sex Discrimination.” The textbook wasn’t lengthy—a hundred pages and change. She used it for her brand-new Rutgers seminar on women’s rights.
While the book by itself wasn’t long enough for a full semester, it did have enough for a professor to teach a women’s rights module as a unit in a broader class, or to use it as a foundation for a class dedicated to women’s rights. The textbook could also be a starting point for a practicing lawyer who wanted to become active in women’s rights.
Unlike “Civil Procedure in Sweden,” the Ginsburg textbook is little cited. As an introduction to the field of women’s law, it was soon outdated, thanks in part to the judicial victories that Ginsburg was winning with her briefs.
Women’s Rights Law Journal
Besides writing her own books and articles, Ginsburg guided the first legal journal dedicated to women’s issues, the Women’s Rights Law Reporter. The entering class of 1970 at Rutgers Law School was 20 percent women. Some of them met with a recent Rutgers Law graduate, Ann Marie Boylan, who had published the first issue of the Reporter from her apartment in Newark. But she couldn’t keep up the whole publication by herself.
The Rutgers students talked with the law school dean and worked out a deal. The Women’s Rights Law Reporter got an office space on campus and raised enough money in donations and subscriptions to pay its expenses, such as printing and mailing.
Besides fundraising for self-sufficiency, the dean’s other condition was that the student-written Women’s Rights Law Reporter had to have a faculty adviser. That would be professor Ginsburg.
The Reporter published “short articles and case summaries exclusively on women’s rights issues,” explained cofounder Elizabeth Langer in a 2010 article for Barnard College. “Our first issues were collectively conceived and published with conscious effort made to avoid the traditional law review hierarchy.”
As Langer recalled: “Professor Ginsburg devoted many hours to writing and editing, counseling the staff, attending meetings, and inevitably mediating with the administration when problems arose.”
In the Reporter’s first issue from Rutgers, the lead article was Ginsburg’s analysis of the Supreme Court’s recent decision supporting women’s rights, in Reed v. Reed, for which Ginsburg had coauthored the merits briefs.
Rutgers professor Ginsburg would later become a Columbia professor, a judge on the D.C. Circuit Court of Appeals, and then a Justice of the Supreme Court. Her illustrious career would be founded on the same characteristics she had shown in those early years at Rutgers: vision, clarity, and generosity.
This article was originally published in Epoch Times, Sept. 23, 2020, and is slightly revised.
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A few moments ago, I blogged about Governor Cuomo’s press conference. His administration will force numerous Jewish schools in Brooklyn and Queens to close. Cuomo promised, several times, to talk to leaders of the Orthodox community to ensure compliance. Cuomo offered a preview of the conversation: “I’m going to say to the orthodox community tomorrow if you don’t agree then we will have to close down your religious institutions.”
I can relate. I was on the receiving end of such a phone call from Governor Cuomo. Yes. It’s true. I wrote about the incident in an article about my 3D-printed gun litigation.
Here is the setup. I had just finished litigation four TROs in five days. The first three TROs were denied, but a federal judge in Seattle granted a nationwide TRO in the fourth case.
I barely had a chance to catch my breath when my phone rang. It was a restricted number. I expected that another Attorney General was threatening to sue Cody [Wilson]. This call would be very different. (The following quotations are paraphrases based on my recollection, written down shortly after the call.) “Hello, this is Governor Andrew Cuomo.” At first I thought it was a prank. I said, “hello, Governor.” He replied, “are you the lawyer for the gun guy.” I said, “yes, I represent Cody Wilson.” He replied, “you tell him to stop sending his gun stuff to New York.” I asked if the Governor meant the “Ghost Gunner,” which is used to manufacture firearms, or the 3D-Printed Gun files. Cuomo had no idea what he was asking “the gun guy” to stop doing. I said “could you have your lawyer send me a letter?” He replied he would have his counsel send something. Then I added, “governor, are you aware that 15 minutes ago, a federal judge in Washington entered a nationwide injunction, barring us from sharing the files online.” He had no idea. I said, “your Attorney General sued us.” Then the conversation took a turn for the bizarre.
He stated “in New York we have an independent Attorney General.” He complained, “[S]he doesn’t work for me.” (At the time, Barbara Underwood was the acting Attorney General.) I replied, “I know, I’m from New York.” He asked, “where are you from?” “Staten Island.” “And where are you now?” “Houston, Texas.” “Don’t you miss New York—greatest place in the world.” I said, “I love Texas, but I miss my family.” “Are your parents still in New York.” “Yes, still in Staten Island.” I added, “Today is their anniversary.” He beamed, “You tell your parents that Governor Cuomo wished them a happy anniversary.”
Then it got weirder. He said, “are you parents going to vote for me?” (Cuomo was up for reelection the following November.) I replied that my parents would. A conversation that began as a vague cease-and-desist order from the Governor of the Empire State turned into a campaign pitch. We were on the phone for nearly 10 minutes! I never did get a letter from New York. After the Governor hung up, I called my parents to wish them a happy anniversary. I had been so busy all day, I hadn’t had a chance to call. My parents, both lifelong New York Democrats, were thrilled with the Governor’s greeting. Over the next few hours, I fielded many calls from print reporters, and gave the same, stock line: we were disappointed with the court’s ruling, and were considering our next options.
Governor Cuomo engages in old-school, Tammany Hall style politics. I regret that I did not think to record this conversation. (Texas is a one-party state). I hope some of the rabbis record their conversations. (New York is also a one-party state).
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Today, New York Governor Andrew Cuomo announced that schools in certain “cluster zones” would be forced to close. But non-essential businesses in those “cluster zones” can remain open. Why? The Governor considered schools as bigger spreaders of COVID. Here, the Governor trumped the decision of New York City Mayor Bill DeBlaiso, which I wrote about last week (here and here).
The Jerusalem Post, a left-leaning Israeli newspaper, offered this description:
New York Governor Andrew Cuomo has said that large gatherings of ultra-Orthodox Jews have been responsible for the outbreak of several COVID-19 “clusters” in the state, and threatened to close down religious institutions if they did not comply with regulations.
Speaking at a press conference on Monday, Cuomo used images of mass gatherings by ultra-Orthodox communities in the state to illustrate his claim about the risks of the spread of the coronavirus from such events.
He said that he would be meeting with religious leaders in Orange County, the location of the large Satmar community in the town of Kiryas Yoel; in Rockland County, which has large Satmar and Viznitz hassidic communities; and Nassau County.
“Orthodox Jewish gatherings are often very large and we’ve seen what one person can do,” Cuomo said in reference to several super spreader incidents involving an ultra-Orthodox Jewish man.
“We know religious institutions have been a problem… Mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks.
“I don’t mean little violations… I’m talking about when they’re only supposed to have 50 people outdoors and they had 1,000… You don’t see masks and you see clear violation of social-distancing.”
Cuomo said that if religious institutions in New York are to stay open they must agree to the conditions laid down by the state “whether it is the Jewish community, Black churches, or Roman Catholic churches,” and said that tough enforcement was also needed.
The contents of this press conference will likely be cited in the near future. In this post, I will offer highlights of his remarks, based on YouTube’s transcription feature.
44:28-45:54
Where does the virus mainly transmit. Dr. Zucker was on the phone, we asked him that question. Schools, which are also the place where different communities come together….Schools can be locations of transmissions. Religious gatherings, especially in these communities. New Rochelle, first hot spot, was an Orthodox Jewish man, who went to a temple. Hundreds of people. And then a wedding hundreds of people. Orthodox jewish gatherings often are very, very, large, and we’ve seen what one person can do in a group.
At that point, Cuomo started to talk about President Barrett’s nomination in the Rose Garden.
48:46-48:58
We’re going to close the schools in those areas tomorrow and that’s that.
Cuomo moved on from closing schools, to the next category, “religious gatherings.”
48:58-51:20
Religious gatherings. The city’s proposal does not close religious institutions. We know religious institutions have been a problem. We know mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks. For weeks. I don’t mean little violations. You’re only supposed to have 50, they had 55. I’m talking about, you’re only supposed to have 50 outdoors, they had one thousand. These are pictures from the past couple weeks. And these are just emblematic. You’ve seen pictures like this for weeks. What did you think was going to happen? What did you think was going to happen? Religious institutions are mass gatherings and raise the greatest potential. Its schools and its large mass gatherings. Schools frankly, because they’re students and that’s where our heart goes, our priority goes. But in terms of numbers, it’s large gatherings and large religious gatherings are large gatherings, these have been going on for weeks. You don’t see masks and you see clear violation of social distancing.
As the Governor said “super spreader” events, an image of observant Jews wearing black hats appeared on his powerpoint presentation. And he said the photos were “from the past couple weeks.”But the photos use used were not recent. Not even close. One of the photos was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn’t even from New York City. It was taken in the Orange County village of Kiryas Joel.
Today @NYGovCuomo shows a picture of Orthodox Jews at a mass gathering. “What did you think was going to happen? He says, “These have been going on for weeks” Well, Gov this Picture is from the 2006 Funeral of the previous Satmar Grand Rebbe, 14 years ago! #Fakenews & Fake facts! pic.twitter.com/YEiq5WVeqo
Apparently the picture @NYGovCuomo put up in his presentation today of a “recent” large gathering in Satmar Kiryas Joel is from 2006 — the funeral of Rabbi Moshe Teitelbaum in Kiryas Joel! pic.twitter.com/CxGtHhyZUj
The Governor’s staff simply found a clip art of Jews congregating. They all look the same, anyway.
Later, Cuomo realized the error.
51:20
Cuomo: When were these pictures from?
Voice off Camera: The one of the on the right is more recent.
Cuomo: Okay. But they are in the recent past. So this has been going on for weeks. We’ve been talking about it for weeks.
The Governor’s spokesperson blamed a “staff error.”
This was a staff error that was caught in real time at the presser. It was swapped out with this photo that was taken two weeks ago at the same location. The new slide was up during the last 10 minutes of the press conference. https://t.co/tu1hcEU4dxpic.twitter.com/1wsL7HEVPn
Cuomo wants to deputize members of houses of worship to close the doors after the space reaches capacity. The failure to provide religious enforcers–dare I call them Kapos–will result in shutting down the institution.
51:38-52:22
If we’re going to keep religious institutions open it can only be with two conditions. One, the community must agree, whether it’s the Jewish community, whether we’re talking about black churches, whether we’re talking about Roman Catholic churches. The religious community has to agree to the rules and they have to agree that they are going to follow the rules and they have to agree that they are going to be a full partner in the enforcement of the rules. That’s condition one.
At several junctures, Cuomo repeated over and over again that he would personally meet with the Orthodox community. He did not plan to meet with any other denomination. Just the Jews.
52:22-54:32
I’m going to meet with members of the Ultra Orthodox community tomorrow. I want to have that conversation directly myself this cannot happen again. If you do not agree to enforce the rules then we’ll close the institutions down. Uh, I am prepared to do that. Second after we receive the agreement an agreement is only as good as the enforcement. We have to have real enforcement in these clusters and the other statewide clusters. The enforcement will help the community. If the rule is no more than 50%of the people in a black church. I want someone at the door when 50% enter the church, a person there who says to the pastor you agreed to follow the rules. That’s 50%. That’s it or we close it down. It does not work without enforcement. But both of those condition have to be in place. And if I do not have the agreement, from the religious community directly as a starting point then we will close down the religious institutions. If they do agree to do it in partnership, then I want a real enforcement capacity. We’re not going to make the same mistake twice. Tomorrow, I’m going to meet with the larger congregations. New York City, Rocklin, Orange, Nassau, and have that conversation that’s step. One if we get past step then we need enforcement in place.
59:06-59:39.
I said from day one blame me blame me you have to revoke a bar owner’s license. Blame me if we have to close the temple because it’s over 50 percent. I’ll do it we have to close a Roman Catholic Church. I’ll do it I had to close the St. Patrick’s day parade. I did it. I’ll do it. But none of these rules are going to make a darn if you don’t have the enforcement.
Cuomo explained that he would not shut down schools by zip code. Instead, he would focus on specific “cluster” areas. This is a not-too-veiled reference to Chasidic communities.
59:40-1:02:00
Targeting by zip codes is imperfect. The virus doesn’t travel by zip codes. Neighborhoods and communities aren’t organized by zip codes. Zip codes can be arbitrary and can leave out that some communities that are infected. Zip codes can include communities that have a low infection rate. This is a zip code in Brooklyn. The white areas are inside the zip code but we have the infection rate by address you have areas in that zip code that aren’t infected. You then have areas outside the zip code that are infected so the zip code is a template. Uh is rough justice but only rough justice. And we can refine that uh takes uh some review and analysis but look at the actual cases that you have again by address and make sure you’re including the relevant zone, not just a zip code. You have to go a little bigger you go a little bigger. If you don’t have an infection rate in certain communities, don’t include those infection rates. So the zip codes uh as a starting place but we then want to have a team of epidemiologists and demographics people actually look at the maps and where the infection rate is and make sure where we’re drawing the right circle or the right borders. And the Controller raised that point. And it’s a good point. And the health officials agree. When we did New Rochelle we did a circle.
When the Governor said “This is a zip code in Brooklyn,” the Powerpoint displayed a color-coded map of Zip Code 11210. This neighborhood is known as East Midwood. There were white cells, which referred to “no cluster.” And the red cells referred to “cluster.”
He showed the location of positive coronavirus tests by address in the 11210 ZIP code, which includes East Midwood, a heavily Orthodox area, and Flatbush, which has a large Black community.
The cluster of positives hewed more closely to the Orthodox area of that ZIP code, where there are numerous synagogues and yeshivas.
Cuomo kept throwing in “Black churches” and the “Roman Catholic Church” to provide balance. But he expressed no interested in meeting with those organizations. I have not checked how many “black churches” are in those hot spot zip codes. I would wager zero.
Again, the Governor repeated that he would meet with Orthodox leaders.
1:03:40-1:05:19
I’m going to be meeting with the orthodox community tomorrow see if they will agree to live and abide by the rules and advocate compliance. If the rabbi advocates compliance that would be a very positive start. If the communities don’t agree with the rules, which is possible, I had some conversations where some religious leaders believe they have herd immunity, which is not true. Some uh people believe uh have followed politics and think that masks are ineffective and this is all a hoax. That’s not true. But if they don’t agree then the state will take action. If they do agree, and we have the ability to enforce, then we will go with reduced guidance, 50 percent rules, primarily outdoors, etc. We’re going to do statewide enforcement, state supervised with local resources, but enforcement has to be enforcement. We need better templates geographic templates than zip codes we also need better data on these schools in these hot spot zip codes. More testing. Faster testing so we find out exactly where we are. And we need to establish criteria for reopening.
The Governor wants a person standing outside the door of churches to monitor compliance.
1:13-32-1:13:51
But I want a person monitoring the attendance in a temple in a black church in a catholic church and if the rules are violated then action has to be taken at that moment and that enforcement has to be in place.
A reporter asked the Governor if he had the “legal authority” to shut down the temples.
1:17:22-1:18:11
Reporter: Do you believe you have the legal authority to close down religious institutions? Wasn’t there a recent court order barring you from doing that.
Cuomo: We believe we have the legal authority. We will assert the legal authority. We have been sued by the religious organizations. Our legal authority was upheld. I don’t like getting into a litigious situation with the religious community. I have enough questions that I have to answer when I get to the pearly gates. I don’t want to also be questioned as to why I was sued by the Catholic Church or the Jewish community for closing temples. I have enough issues on my plate. But yes we believe we have the legal authority.
Again, Cuomo said he would meet with Orthodox leaders.
01:22:11-1:22:43
Meet with the Orthodox community see if they will agree to live by the rules. If they do then we need to put in together statewide enforcement task force and the local governments have to give me enough personnel to make it work. And that will be statewide including New York City. Then redraw the geographic uh boundaries see what’s in and see what’s out.
And the Governor has lots of Jewish friends.
1:24:23-1:25:06.
You’re dealing with government saying to religions you shouldn’t have uh more than x people in your church or your mosque or your temple that’s a politically uncomfortable situation. You know i have to say to the orthodox community tomorrow. If you’re not willing to live with these uh rules then I’m going to close the synagogues. I have had a 30-year relationship with the orthodox community. It goes back to my father. Uh i have a very close personal relationship with them.
This sort of statement is the Jewish equivalent of, “I have lots of black friends.”
The Governor actually admitted that his action is “right on the line of government intrusion of religion.”
1:25:06-1:25:26.
This is the last thing I want to do. Forget the politics i don’t care about that anymore. Personally i don’t want to have this conversation. It’s a difficult conversation. And you’re right on the line of government intrusion on religion. So it’s hard.
The Governor wants people to “close the door” to a church if too many people enter.
1:27:11-1:27:38
I’m the state person running the task force. I say [to a health officer] you’re going to be stationed in front of Saint Peter’s Church. The capacity is 150. You stand at the front door. When they go over you close the door and call me and if you have any problem this state police officer is down the block and he’ll come help you.
And if the Orthodox communities do not play ball, the Governor will “close down” their temples.
1:29:16-1:29:40
You know I’m going to say to the orthodox community tomorrow if you don’t agree uh then we will have to close down your religious institutions. I’m gonna have to say that to the uh black ministers that’s not a comfortable conversation.
1:33:20-1:33:30
Think about it you’re a local politician pick one: close temples, close mosques, close schools, close catholic churches, you know? No thank you.
1:33:58-1:34:24
Reporter: There are two concerts that are planned in Brooklyn this week in the ultra orthodox community are you going to close down larger venues this week
Cuomo: Well first of all it shouldn’t be happening anyway. Period. It violates the existing law. You have to enforce the law statewide.
1:36:45-1:37:14
We agreed we would do this is the plan of action you were hearing it as soon as i could get it to you testing going forward do you want to see in schools you said there’s not enough going on and the city at least the city schools were doing monthly random testing a certain percentage do you want to see something more than that and then how about the yeshivas or religious schools in these areas do you want to see more specific testing.
The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment” of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause-which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters,” Zorach v. Clauson, 343 U. S. 306, 319 (1952) (Black, J., dissenting)-has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.
The Grand Rebbe could not have imagined the Governor’s chutzpah.
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I asked this many years ago, but was reminded of it just now, and thought I’d ask it again:
Without looking it up or having studied or practiced in New England—which is where the phrase seems to be used—what does “PPA” mean in a case caption (when it doesn’t mean “phenylpropanolamine,” the subject of a spate of litigation some years ago)?
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In this episode, Jamil Jaffer, Bruce Schneier, and I mull over the Treasury announcement that really raises the stakes even higher for ransomware victim. The message from Treasury seems to be that if the ransomware gang is the subject of OFAC sanctions, as many are, the victim needs to call Treasury and ask for a license to pay – a request that starts with a “presumption of denial.”
CFIUS is baring its teeth on more than one front. First comes news that a newly resourced CFIUS staff has begun retroactively scrutinizing past Chinese tech investments. This is the first widespread reconsideration of investments that escaped notice when they were first made, and it could turn ugly. Next comes evidence that the TikTok talks with CFIUS could be getting ugly themselves, as Nate Jones tells us that Treasury Secretary Mnuchin has laid down the elements the US must have if TikTok is to escape a shutdown. None of us think this ends well for TikTok, as China and the US try to prove how tough they are by asking for mutually exclusive structures.
The US government is giving US companies some free advice about how to keep sending their data to the US despite the European Court of Justice decision in Schrems II: First-time participant Charles Helleputte offers a European counterpoint to my perspective, but we both agree that there’s a lot of value in the US white paper. If nothing else, it offers a defensible basis for most companies to conclude that they can use the standard contractual clauses to send data to the US notwithstanding the court’s egregiously anti-American opinion. The court may not agree with the white paper, but the reasoning could buy everyone another three years and might be the basis of yet another US-EU agreement.
The UK seems to be preparing to take Bruce’s advice on regulating IOT security, but he thinks that banning easy default passwords is just table stakes.
Nate questions the press stories (and FBI director testimony) claiming that the FBI is pivoting to a new strategy for punishing hackers by sending Cyber Command after them. He thinks it’s less a pivot and more good interagency citizenship, which I suspect is still a change of pace for the Bureau.
Bruce and I explore the possibility of attributing exploits to individuals based on their coding style. You might say that their quirks leave fingerprints for the authorities, except that at least one hapless hacker has one-upped them by leaving his actual fingerprints behind in an effort to get himself approved in a biometric authentication system.
And in updates, we note that Microsoft has a new and unsurprising annual report on cyberattacks it has seen; the Senate will be subpoenaing the CEOs of Big Social to talk section 230 in an upcoming hearing; and the House intel committee has a bunch of suggestions for improving the performance of the intelligence community against evolving Chinese threats.
And more!
Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
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By the time you read these words, even more employees at the White House will have tested positive for COVID-19 than detailed in the already-lengthy list this morning from Reason‘s Elizabeth Nolan Brown. What, if anything, does that tell us about the patient-in-chief, his coronavirus polices to date, and the post–Election Day future?
There are vigorous differences of opinion on these questions in today’s Reason Roundtable podcast. Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward debate tail risk, peaceful transfers of power, erratic behavior, media hyperventilation, local corona-bungling, congressional money-printing, endless lockdowns, and more. The gang also previews this week’s vice presidential debate, explores the Sherlock Holmes–superhero connection, and talks about South Park‘s Pandemic Special.
Myles Cosgrove, a Louisville, Kentucky, detective who participated in the fruitless and legally dubious drug raid that killed Breonna Taylor last March, told investigators the incident unfolded so quickly that he was not consciously aware of using his gun. That detail, which emerged from audio recordings of grand jury proceedings that were released on Friday, is alarming in light of the fact that Cosgrove fired 16 rounds—including the fatal bullet, according to the FBI’s ballistic analysis.
“I just sensed that I’ve fired,” Cosgrove said in an interview that was played for the grand jurors. “It’s like a surreal thing. If you told me I didn’t do something at that time, I’d believe you. If you told me I did do something, I’d probably believe you, too.”
Cosgrove was responding to a single round fired by Taylor’s boyfriend, Kenneth Walker, who has consistently said he thought he was protecting Taylor and himself from dangerous criminals. That bullet struck Sgt. Jonathan Mattingly in his left thigh. But Cosgrove said he was “overwhelmed with bright flashes and darkness,” which led him to believe “there’s still these gunshots happening due to those bright lights.”
At a press conference last month, Kentucky Attorney General Daniel Cameron said Mattingly fired six rounds after he was hit, which may account for Cosgrove’s mistaken impression that someone inside the apartment was continuing to shoot at him and his colleagues. Cameron said Mattingly and Cosgrove fired “almost simultaneously” at Walker and Taylor, who was unarmed but standing next to Walker “at the end of the hall.”
A third officer, Detective Brett Hankison, blindly fired 10 rounds from outside the apartment, an act of recklessness that led the grand jury to charge him with three counts of wanton endangerment. Some of Hankison’s rounds entered the unit behind Taylor’s, which was occupied by a man, a pregnant woman, and a child. Hankison is the only officer who faces criminal charges in connection with the raid. State prosecutors concluded that the other two officers legally used deadly force in self-defense.
Cosgrove’s description of the incident does not necessarily cast doubt on that conclusion, but it does underline the dangers inherent in the armed home invasions that police routinely use to enforce drug prohibition. Those dangers include not only the well-known risk that residents will mistake cops for robbers but the possibility that police will mistake their colleagues’ gunfire for an assault by their targets. In such chaotic circumstances, there is also a risk that police will be injured or killed by friendly fire.
The plainclothes officers were serving a warrant based on Taylor’s continued contact with an ex-boyfriend who was arrested for drug dealing the same night. They approached her apartment around 12:40 a.m. Although the warrant authorized the cops to break in without knocking or announcing themselves, they claim they did both. According to Cosgrove, they waited about 90 seconds before using a battering ram to force entry, beginning with “gentle knocking” and escalating to “forceful pounding,” eventually accompanied by cries of “Police!”
Cameron accepted this account. That was an important determination, since Kentucky’s law allowing the use of deadly force in defense of a dwelling makes an exception for armed resistance to a police officer who enters a home “in the performance of his or her official duties,” but only if “the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.”
In an interview played for the grand jurors, Walker said he and Taylor were watching a movie in bed at the time of the raid. He said he was “scared to death” when he heard the pounding on the door, which by his reckoning lasted for 30 seconds or so. “Who is it?” he and Taylor yelled, according to his account; he said they heard no response. The New York Timesreports that “11 of 12 witnesses on the scene that night said they never heard the police identify themselves,” while “one of them said he heard the group say ‘police’ just once.”
Cameron said “the officers’ statements about their announcement are corroborated by an independent witness.” Last week, however, the Louisville Courier-Journalreported that the “independent witness” initially said he heard no announcement. “No, nobody identify themself,” he told police on March 21. When investigators talked to him again on May 15, he changed his story, saying he heard the officers announce, “This is the cops.”
Whichever version you credit, it is completely plausible that Walker did not realize the armed men invading the apartment were police officers. He reported a break-in during phone calls that night, including a 911 call after the shooting in which a distraught Walker said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.” In these circumstances, it is not surprising that local prosecutors, who initially charged Walker with attempted murder of a police officer, dropped that charge in May.
In a New York magazine post, Zak Cheney-Rice says Cameron seems to have “lied multiple times” when he explained why neither Cosgrove nor Mattingly were charged in connection with Taylor’s death. In addition to accepting the cops’ self-serving account of what they did before using the battering ram, Cheney-Rice notes, the attorney general said “the grand jury agreed that Taylor’s death was justified.”
During his post-indictment press conference, Cameron said “our investigation showed, and the grand jury agreed, that Mattingly and Cosgrove were justified in their return of deadly fire after having been fired upon by Kenneth Walker” (emphasis added). But he also made it clear that his prosecutors determined that charges against Mattingly and Cosgrove were not legally viable. “According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves,” he said. “This justification bars us from pursuing criminal charges in Miss Breonna Taylor’s death.”
Since that is the way Cameron’s office framed the issue, it is hardly surprising that the grand jury did not approve charges against Mattingly or Cosgrove. But it is clearly a stretch to say “the grand jury agreed” charges were inappropriate; that is what state prosecutors, who dominated the proceedings as the only legal experts who offered an opinion on the matter, told the jurors. Accepting that guidance in the absence of an alternative legal theory is not quite the same as agreeing with it.
The distinction struck at least one of the jurors as important. Last week that unnamed juror filed a motion seeking the public release of the grand jury record so that “the truth may prevail.”
That truth includes not just Hankison’s recklessness, which was glaring enough to justify criminal charges, but the gratuitous risks that all of the officers took that night. The Times notes that Hankison “had not anticipated a firefight” because he “expected one unarmed woman, who had no criminal record, to be home alone.” In a saner world, that expectation would have cast doubt on the tactics that police decided to use, even leaving aside the weak excuse of a search warrant that was built entirely on guilt by association.
Based on scant evidence and the immoral logic of the war on drugs, these officers created the situation in which Cosgrove found himself reflexively firing 16 rounds down a dark hallway. When a terrified man had the temerity to defend himself against a bewildering home invasion, Cosgrove and his colleagues responded with overwhelming force, firing a total of 32 bullets. The legal determination that 22 of those rounds were justified should not blind us to the fact that whole operation was a travesty from beginning to end.
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President Donald Trump has been touting chloroquine and hydroxychloroquine since March as effective treatments for COVID-19. He even took hydroxychloroquine as a prophylactic measure for two weeks in May.
Last week, when the president was hospitalized for a COVID-19 infection, his physicians listed the medications with which he is being treated. Hydroxychloroquine is notable by its absence.
Instead, the president has been aggressively treated with Regeneron Pharmaceuticals’ polyclonal antibodies. This combination of two monoclonal antibodies aims to block the coronarvirus from infecting cells, providing extra time for patients’ immune systems to ramp up their own natural defenses against the virus. While the treatment is still in clinical trials, preliminary reports suggest that it does substantially help to alleviate COVID-19 symptoms.
The president’s team of physicians subsequently started him on a five-day course of remdesivir infusions that aim to inhibit the virus’ ability to replicate. Clinical trials suggest that the drug offers moderate benefits by shortening the recovery time for people with COVID-19 from an average of 15 days to about 11 days. That said, in one study “remdesivir did not appear to affect rates of severe acute respiratory syndrome coronavirus 2 viral RNA load decline and mortality when compared with placebo.” In other words, the drug did not hasten the elimination of the virus nor have much effect on the death rates of COVID-19 patients.
Now the president is being treated with the corticosteroid drug dexamethasone. Some preliminary research finds that this drug can modestly reduce the risk of mortality for COVID-19 patients who are on ventilators or receiving supplementary oxygen. It had no apparent effect on the risk of death for patients who were not receiving respiratory support. (The president has reportedly been given supplementary oxygen.)
In addition to the these cutting-edge treatments, the president is also taking zinc, vitamin D, famotidine, melatonin, and a daily aspirin.
Given the role that zinc plays in the immune system, some researchers have suggested that the nutritional supplement might help reduce the health consequences for COVID-19 patients, especially among that portion of the population experiencing zinc deficiency. A very preliminary observational study reported in August found that zinc therapy had minimal effect on the survival of hospitalized patients with COVID-19. But another small study, reported in September, found that zinc-deficient COVID-19 patients “developed more complications with prolonged hospital stay and were associated with increased mortality.”
Researchers have tentatively concluded based on observational studies that supplementation with vitamin D could help prevent COVID-19 coronavirus infections and ameliorate the symptoms of those who do become infected. An October report of one small randomized controlled study in Spain found that administering a high dose of vitamin D “significantly reduced the need for ICU treatment of patients requiring hospitalization due to proven COVID-19.”
Famotidine, widely used to reduce stomach acid, may prevent the immune systems of COVID-19 patients from unleashing an uncontrolled inflammatory response to the virus that ends up destroying their organs. Several observational studies have suggested that administering the compound to hospitalized COVID-19 patients reduces their risk of death. And one small study of non-hospitalized patients found that the drug ameliorated the symptoms of the disease.
Some researchers are speculating that the sleep hormone melatonin might help prevent an overactive and destructive inflammatory response to infection by the coronavirus. No clinical trials researching this hypothesis have been conducted.
You might wonder why the president’s doctors aren’t treating him with hydroxychloroquine, the compound Trump has been touting as a COVID-19 treatment for months? The answer: lack of evidence from clinical trials that it works.
A July report of a randomized trial in which patients with early diagnoses of COVID-19 were treated with hydroxychloroquine found that the compound “did not substantially reduce symptom severity in outpatients with early, mild COVID-19.” An August study reporting the results of a multicenter randomized trial using hydroxychloroquine to treat COVID-19 patients concluded that adding the drug “to standard care did not add significant benefit, did not decrease the need for ventilation, and did not reduce mortality rates in COVID-19 patients.” An August 26 systematic meta-analysis of the effect of hydroxychloroquine administered with and without the anti-bacterial azithromycin reported that “hydroxychloroquine alone was not associated with reduced mortality in hospitalized COVID-19 patients but the combination of hydroxychloroquine and azithromycin significantly increased mortality.”
It is not surprising that the president’s medical team have declined to prescribe hydroxychloroquine as a treatment, since no randomized controlled trials to date have shown any significant benefit to COVID-19 patients with the drug.
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