Tag: hit&run

Georgia Gov. Brian Kemp has filed a lawsuit against Atlanta Mayor Keisha Lance Bottoms and members of Atlanta’s City Council. The suit aims to prevent the city from enforcing mask requirements or rolling back the state’s reopening phases.

The lawsuit comes just a day after the Republican governor issued an executive order suspending local governments’ face covering requirements, a policy some 15 localities had adopted. The governor’s own COVID-19 executive orders have recommended, but do not require, masks to be worn.

“This lawsuit is on behalf of the Atlanta business owners and their hardworking employees who are struggling to survive during these difficult times,” tweeted Kemp. “These men and women are doing their very best to put food on the table for their families while local elected officials shutter businesses and undermine economic growth.”

“3,104 Georgians have died and I and my family are amongst the [106,000] who have tested positive for COVID-19,” Bottoms shot back. (The Democratic mayor announced last week that she had tested positive for the coronavirus.) “A better use of tax payer money would be to expand testing and contact tracing.”

In addition to targeting the mask mandate, Kemp’s lawsuit accuses Bottoms of telling the Atlanta Police Department not to enforce the state’s ban on gatherings of more than 50 people.

The governor’s attempts to curtail a locality’s authority sparked a wave of national criticism from liberals—as well as from Congress’ only Libertarian congressman, Rep. Justin Amash of Michigan.

Better headline: Governor sues for the right to potentially kill his constituents https://t.co/1MLnwHXNuJ

— Jemele Hill (@jemelehill) July 16, 2020

This is madness. This Governor of Ga. is using the state’s resources to sue the mayor of city with a population disproportionately vulnerable to a deadly virus, to stop her from requiring a minimal public safety measure recommended by the CDC. Stand strong Mayor @KeishaBottoms. https://t.co/YduEp0I4qa

— Sherrilyn Ifill (@Sifill_LDF) July 16, 2020

What happened to support for local decision making? State governments should neither mandate mask wearing nor prohibit local units from mandating mask wearing. https://t.co/SvFhcBK4qB

— Justin Amash (@justinamash) July 16, 2020

Kemp’s emergency COVID-19 orders include a prohibition on local governments issuing rules that are inconsistent with the ones coming from state authorities. His latest July 15 executive order also explicitly suspends any face mandates “to the extent they are more restrictive” than the governor’s order.

Bottoms’ most recent mask mandate—Atlanta law sunsets emergency orders every 72 hours, requiring them to be reissued—acknowledges this suspension. But the order argues that only a prohibition on wearing masks should be considered “more restrictive.” The city’s requirement to wear a mask, Bottoms’ order asserts, isn’t in fact a restriction on mask-wearing and therefore doesn’t conflict with the governor’s order.

This logic is a little wacky. A requirement to wear a mask in public entails a prohibition on not wearing a mask. That prohibition is clearly more restrictive than Kemp’s voluntary guidance. As a matter of law, Kemp has the better argument.

That said, Kemp is clearly playing politics as well. The fact that he is suing to stop Atlanta’s mandate, but not those of the other 14 Georgia cities with similar requirements, suggests this lawsuit is more about a political rivalry between the state’s Republican governor and the Democratic mayor of its largest city than anything else.

At the same time, Bottoms appears happy to exacerbate this conflict by renewing her city’s mask mandate in the face of an explicit state prohibition of these policies, and by using some really tortured reasoning to justify her action.

Other mayors are muddying things further by trying to make the issue about the wisdom of wearing a mask, not whether local governments have the power to require them. See, for instance, this tweet from Savannah Mayor Van Johnson:

It is officially official. Governor Kemp does not give a damn about us. Every man and woman for himself/herself. Ignore the science and survive the best you can.

In #Savannah, we will continue to keep the faith and follow the science. Masks will continue to be available!

— Mayor Van Johnson (@MayorJohnsonSAV) July 16, 2020

Of course, masks would still be available. The question is whether people will be forced to wear them.

What is a libertarian to make of all this?

There is a conceivable libertarian argument for masking requirements, on the grounds that they do more to prevent the wearer from infecting other people than from being infected themselves. Under this view, an unmasked person could be considered a walking nuisance whose behavior is the legitimate subject of regulation. But whether or not you accept this argument, these mask mandates apply to people regardless of whether they are infected and, thus, regardless of whether they pose a risk to others.

Other libertarians, such as Amash, might think that state governments should leave it to localities to come up their own response to COVID-19. The severity of the pandemic can vary wildly within states, meaning a policy that’s necessary for one city is inappropriate in another. Kemp’s efforts to combat the pandemic, while being much less restrictive than other governors’, have been among the most centralized.

Still, there’s nothing inherently unlibertarian about state governments preempting unjust or unwise local laws. Few libertarians object to state prohibitions on local income taxes or rent control ordinances, for instance.

People should also be mindful of the fact that mask mandates come with serious punishments attached. Savannah’s mask requirement comes with a $500 fine (although Johnson did tell the Associated Press that violators would be offered a free face covering first). Atlanta’s laws make it a misdemeanor to violate the mayor’s emergency orders, meaning someone could potentially be hit with a $1,000 fine and up to six months in jail for not wearing a mask in public.

We, as a country, just witnessed two months of protests predicated on the idea that police are often unnecessarily punitive and violent when enforcing the law. That would include the Atlanta Police Department, whose officers have recently been involved in a number of high-profile, highly controversial uses of force. This very same police department that would be expected to enforce the city’s masking requirement.

Meanwhile, private parties—including such major retailers as Walmart, Target, Starbucks, and CVS—are requiring customers to wear masks. This will help keep shoppers safe without the threat of fines and jail time.

Kemp’s lawsuit is obviously politically motivated. But the governor seems to have both liberty and the law on his side.

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

New on the Short Circuit podcast: Disloyal sheriff’s deputies get the ax and Euclidean policing.

• Porn company sues anonymous porn pirate, asks district court to let it subpoena the pirate’s internet service provider to determine the pirate’s identity. District court: Your product is “aberrantly salacious,” and on top of that, who even knows if the IP address subscriber is actually the pirate? D.C. Circuit: The videos’ content shouldn’t affect the company’s ability to defend its copyright. And at this stage, it’s at least plausible that the IP address subscriber is the person using that IP address to pirate the porn. The case may proceed.
• Allegation: Television host Joy Reid shares a photo on Instagram of a white woman with her mouth open in front of 14-year-old Hispanic boy at a city council meeting on California’s sanctuary city law. What words were coming out of that mouth? According to Reid, they were: “You are going to be the first deported” . . . “dirty Mexican!” According to the boy, they were actually having a civil conversation. The woman sues for defamation. Second Circuit: And the case will proceed. California’s anti-SLAPP law is preempted by the Federal Rules of Civil Procedure, the woman is not a public figure, and Reid’s posts attributed specific racist conduct to her.
• Allegation: The noxious odors produced by a Bethlehem, Penn. landfill renders residents within a 2.5-mile radius unable to enjoy their porches, swimming pools, yards, etc. Third Circuit: The law of nuisances may be a “‘legal garbage can,’ full of vagueness and uncertainty,” but this is a thing you can sue a landfill over.
• Do prisoners have a protected liberty interest in not being kept in solitary confinement? Fourth Circuit: If they’ve already been there for four years, they sure as hell do. But they still might lose on qualified immunity grounds.
• Following gunfire at an apartment complex, Richmond, Va. police arrive to investigate. Looking for the gunman, they begin interrogating people in the area and requesting that they show their waistbands. One man—who was not acting suspiciously before being approached—demurs and in a subsequent search is found to be a felon in possession. Was the search justified by exigent circumstances? Fourth Circuit (en banc): Nope. Concurrence: Nope. Concurrence: Nope. Concurrence: Nope, and the dissent is “bereft of any jurisprudential reasoning.” Dissent: I appreciate the views of the majority and all of the concurrences except that last one.
• U.S. Park Police officer stops an on-duty Secret Service agent who is waiting in his gov’t-assigned vehicle to escort a motorcade. The stop lasts nearly an hour, far longer than it took for Park Police to confirm that the Secret Service agent was indeed an agent. Soon after (and well after the motorcade has come and gone), another park police officer pulls the agent over a second time for using his cell phone while driving (which, given his job, is not illegal). Fourth Circuit: Based on the Secret Service agent’s account, seems like those stops were pretty unreasonable. His Fourth Amendment claim can proceed.
• Under Supreme Court precedent, a school district is not liable under Title IX for teacher-on-student harassment unless the district had actual notice of the misconduct and was deliberately indifferent to it. Fifth Circuit: It really sucks that we have to apply that rule to these horrific facts.
• Divers at downtown Houston aquarium are all trained scientists, and when they dive into the tanks to clean them and feed the animals they are conducting “scientific dives,” says the Fifth Circuit, which means they are exempt from OSHA rule requiring extra safety equipment. (In fact, the equipment may make the dives less safe in these circumstances).
• In which two-thirds of a Sixth Circuit panel “encourage[s] the interested reader to watch the video for herself” to see if Detroit officers used excessive force putting a wheelchair-bound protester into a police van. Video here. (Check your volume first. It plays automatically.)
• Contrary to what one might believe from reading Agatha Christie, poisoning one’s spouse with thallium (a tasteless white powder that looks like salt and makes one’s hair fall out) will apparently not yield a mystery insoluble to all save a plucky gentleman-sleuth. The Seventh Circuit has the shocking story, which ought to come as good news to those for whom the stay-at-home lifestyle is wearing thin.
• Detainee at Polk County, Wisc. jail is taken to hospital for (fruitless) cavity search after two other detainees report that she’s hiding meth in her cavities. Seventh Circuit: The district court was right to dismiss her Fourth Amendment claims. The jail officials had reasonable suspicion, and the search—while obviously intrusive—was carried out in a reasonable, hygienic manner.
• Following their guilty pleas on drug charges, but before sentencing, two California men catch a break when Congress passes an appropriations rider that prohibits the Department of Justice from spending money to prevent states from implementing their medical marijuana laws. Ninth Circuit: And because the two men were in strict compliance with state law, they’re off the hook unless Congress makes a new appropriation. Dissent: The only problem with that holding is that the two men were decidedly not in strict compliance.
• The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Seventh Circuit (2018), Third Circuit (2019), Ninth Circuit (2019), First Circuit (2020): No. Ninth Circuit (this week): Still no. But the AG gets a small win as the court, holding that the district court was wrong to issue a nationwide injunction, limits relief to only California. Over at the Second Circuit meanwhile, the court will not rehear its 2019 decision holding that the AG can indeed withhold the funds. Dissent: This refusal is “astonishing,” and “I am, frankly, astounded.”
• Birmingham, Ala. officer shoots suspect who pointed a gun at the police. After a two-month hospital stay, the suspect is charged with attempted murder and spends 16 months in pretrial detention. The cop who pulled the trigger receives an award for the incident. But wait! A local news organization obtains dashcam video showing that the suspect was on his hands and knees when he was shot and that he did not point his gun at the officers. Charges are dropped. Eleventh Circuit: And the man can sue for malicious prosecution; no qualified immunity.
• In 1995, a lawful permanent resident pleads guilty to resisting a police officer with violence. Under the immigration laws then in force, he remained eligible to seek a waiver of deportation. But in 1997, Congress passes a new law, under which people convicted of certain crimes are no longer eligible for those waivers (now called “cancellations of removal”). And in 2013, the feds commence removal proceedings against the man. Gov’t: The 1997 law is retroactive, so the man isn’t eligible to seek cancellation of removal. Board of Immigration Appeals: Sounds right to us. Eleventh Circuit: No.
• And in en banc news, the Sixth Circuit will reconsider its decision barring Ohio officials from executing an inmate convicted of murder in 1986 who is (the original panel held) intellectually disabled. (Earlier, the inmate unsuccessfully petitioned for a new trial on the ground that bite mark evidence is applesauce.) The Fifth Circuit (over a dissent), however, will not reconsider its decision that a Houston community college board member who was censured after he accused other members of mismanagement has a First Amendment claim.

Last week, Nashville officials voted to repeal the city’s ban on home businesses that welcome clients on site, an especially strange rule for the “Music City” that barred commercial home studios. Imposed in 1998 without debate or explanation, the ban prevented IJ clients Lij Shaw, a musician, and Pat Raynor, a hair stylist, from operating their businesses even though they were conscientious neighbors. They plan to apply for the city’s newly minted home occupation permits as soon as they are available. Click here to learn more.

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The news that Justice Ruth Bader Ginsburg is again being treated for a recurrence of cancer has spurred yet more handwringing over the possibility of a late-term appointment to the U.S. Supreme Court. It also remains entirely possible that a justice might voluntarily choose to retire, perhaps in order to allow President Trump to fill the seat rather than see where the political winds take us over the next four or eight years.

I personally would not look forward to seeing the fireworks, and I wish Justice Ginsburg a speedy recovery. There is no doubt that a vacancy on the Court in 2020 would generate an extraordinarily heated political battle. It is quite likely that Senate Majority Leader Mitch McConnell would be able to hold together his coalition and fill any vacancy that might arise, assuming the White House is competent in quickly moving forward a solid nominee. The fight might well be damaging to the Court’s own reputation, and there are the obvious comparisons to be made with the handling of Merrick Garland’s nomination at the end of the Barack Obama administration.

I thought McConnell was making a bad political bet in 2016. Garland might not have been an enticing compromise candidate, but given that it seemed likely at the time that Obama would be succeeded by Hillary Clinton it was probably the best deal that McConnell could expect to get for Antonin Scalia’s seat. Of course, Donald Trump pulled out a surprise victory, and McConnell’s huge gamble paid off handsomely when Neil Gorsuch was confirmed to succeed Scalia.

What I did not understand at the time was the commonplace view on the left that McConnell had done something shocking or illegitimate. The White House and the Senate were controlled by opposite parties in an election year when a vacancy appeared on a court both parties cared about, and that the Republican Party especially cared about. Of course the Republican Senate was not going to be inclined to confirm anyone resembling a normal Democratic nominee. That’s Politics 101. That had been the game for years across a wide range of government activities, from legislating to confirming. Neither party has given the opposition White House anything in an election year when it had the tools available to obstruct.

Supreme Court nominations are a bit different in that such ill-timed vacancies have been unusual, in that the costs to the Court of allowing a vacancy to sit for a long period of time are larger, and in that a Supreme Court nomination is high enough profile that it would have been easier for the Obama White House to have put pressure on the Senate to act, if it had been inclined to invest the energy to do so. But fundamentally, it has always been difficult to move a Supreme Court appointment through the Senate in an election year. The key to doing so successfully has always been enjoying same-party control of the Senate. Obama did not have that in 2016. Trump does in 2020.

After the failed Harriet Miers nomination in 2005, I looked at the history of failed Supreme Court nominations in some detail. As I noted then, actual lame-duck nominations made by after a presidential successor had been elected were not uncommon in the nineteenth century. The lame-duck period was relatively long before the Twentieth Amendment moved the date of presidential inaugurations. Without much financial security, justices were reluctant to voluntarily retire, and so unplanned vacancies were relatively common. As I noted:

Lame-duck nominations were a common feature of nineteenth-century appointment politics, accounting for 16 percent of all nominations made before 1900, but there have been no lame-duck nominations in over a century. Lame-duck nominations also had a high rate of failure.

As one might expect, lame-duck nominations were generally dead on arrival during divided government. Conversely, same-party Senates were more than happy to act on lame-duck nominations – when the Senate was on friendly terms with the president. John Adams, Andrew Jackson, and Martin Van Buren had no problem filling seats on the Court at the last minute. The Republican Rutherford Hayes had little difficulty persuading a Democratic Senate to confirm a lame-duck nominee when the alternative was waiting for his Republican successor to work with a more-Republican Senate after the inauguration. Benjamin Harrison had a harder time because the Democratic minority had the ability to run out the clock with a filibuster and wait for the incoming Democrat Grover Cleveland to be sworn in. Harrison outmaneuvered them by nominating a former Democratic senator for the seat. If he had tried Obama’s gambit of naming an older, moderate Republican, he no doubt would have failed to fill the seat. The apostate “accidental president” John Tyler did not have much luck convincing a Whig majority in the Senate to confirm his nominations.

Late-term nominations made when the presidential election was on the horizon have always had a similar dynamic. Late-term nominations have actually been less common over the course of American history than lame-duck nominations, but they have been just as difficult to pull off. Lyndon Johnson tried to game the system by convincing Chief Justice Earl Warren to announce his retirement rather than risk the seat falling into frontrunner Richard Nixon’s hands, and the move backfired when Warren Court critics in the Senate refused to line up behind Johnson’s favorite, Abe Fortas. When Justice Charles Evan Hughes stepped down to accept the Republican presidential nomination in the summer of 1916, the Republican minority in the Senate could hardly obstruct Woodrow Wilson’s decision to replace him with John Clarke. John Tyler and Millard Fillmore had little luck getting late-term nominations confirmed by a hostile Senate, though Grover Cleveland was able to get Melville Fuller confirmed as chief justice by a narrowly divided Senate in the summer of an election year.

Supreme Court nominations in the last months of a presidency have not been common since the nineteenth century, and they are particularly fraught in a highly polarized environment. But, fundamentally, this is politics as usual. McConnell would be practically unique in American history if he did not facilitate a president of his own party filling a vacancy on the high bench at any point in the next few months. Trump is an unusual president in many ways, but it would be yet another example of the idiosyncrasy of his presidency if he failed to put forward a nominee for a vacancy – even if that vacancy arrived after his own defeat in November. Presidents and Senates are not in the habit of leaving seats on the Court unfilled if they are in a position to fill them. That’s not playing hardball. That’s taking the layup.

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From Matter of Crane, decided Wednesday by Judge Michael L. Dollinger (Monroe County):

On March 25, 2020, the Court received notification from the New York State Division of Criminal Justice Services (“DCJS”) that Douglas James Crane, a New York State pistol permit licensee, was convicted of the misdemeanor offense of Criminal Possession of Stolen Property in the [Fifth] Degree on May 26, 1982 in Walton Village Court. The notice from DCJS indicates that the “division has determined that the individual is ineligible to possess such a license or is no longer a valid license holder based upon their criminal conviction. This determination is being provided to you as the licensing authority for appropriate action (see Penal Law §§ 400.02 and 400.00).”

For the reasons set forth herein, this Court declines to revoke Mr. Crane’s pistol permit, which was granted to him in 1991 with the issuing County Court Judge’s full knowledge of the conviction now being reported to this Court, 38 years after its entry in Walton Town Court….

Mr. Crane obtained a Certificate of Relief from Disabilities dated October 17, 1991 signed by Justice Carl Gregory of Walton Town Court that “specifically includ[es] the right to apply for and receive a pistol permit.” Mr. Crane submitted a copy of the Certificate of Relief from Disabilities to Judge Bristol. Judge Bristol then exercised his discretion and after full consideration of the factors in Penal Law § 400.00[1], granted Mr. Crane’s pistol permit application on November 12, 1991. Mr. Crane has held his pistol permit, without issue, since then.

In January 2013, in the wake of mass shootings including at Sandy Hook Elementary School on December 12, 2012, and at the West Webster Fire Department on December 24, 2012, the New York State legislature enacted sweeping gun-safety reform legislation known as the NY SAFE Act.

This legislation included the creation of a statewide database to be maintained by DCJS (PL § 400.02). Pursuant to the statute, DCJS became responsible for periodic review of licensees to determine the continued accuracy of criminal convictions, mental health, and all other records and to determine whether an individual is “no longer a valid license holder.” The Division also “upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or revoke² such license and any weapons owned or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article.”

The DCJS now seeks to have this Court apply Penal Law Section 400.02 retroactively and revoke Mr. Crane’s permit because that agency has determined that he is now, as a result of his 1982 conviction, “ineligible to possess such a license or is no longer a valid license holder.” …

I find that it was not the legislature’s intent to have Penal Law Section 400.02 apply retroactively to override a decision of the licensing official when that decision was made with full knowledge of the conviction that is the subject of the notification, absent a change in the disqualifying nature of the conviction.

Mr. Crane received a certificate of relief from disabilities from the Walton Town Court Justice back in 1991 for his 1982 conviction for criminal possession of stolen property in the [fifth] degree, the same conviction that is the subject of the current DCJS notice. The certificate “relieve[d] the holder of all disabilities and bars to employment” and in a typewritten addition to the document specifically included “the right to apply for and receive a pistol permit.”

It is well settled that a certificate of relief from disabilities is sufficient to remove the statutory prohibition against holding a pistol permit…. This Court finds, and indeed Judge Bristol agreed, that the certificate of relief from disabilities overcame the statutory bar and vested the decision of whether to grant or deny a pistol permit in the broad discretion of the licensing official….

The right to bear arms if a fundamental Constitutional right. When enacting the SAFE ACT, the New York State legislature noted that the right to keep and bear arms is protected by the Second Amendment, but that right is “not unlimited.”

A statute has retroactive effect if “it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,” thus impacting “substantive” rights. Where the retroactive application of a statute would impact “substantive rights” there is a well settled and “deeply rooted presumption against retroactivity that is based on elementary considerations of fairness that dictate that individuals should have an opportunity to know what the law is and to confirm their behavior accordingly.” It therefore “takes a clear expression of the legislative purpose … to justify a retroactive application” of a statute to ensure that “the Legislature contemplated the retroactive impact on substantive rights and intended the extraordinary result.”

There is no clear expression of legislative purpose which would justify a retroactive application of the statute under these circumstances.

Penal Law Section 400.00[11] supports this conclusion, “[t]he conviction of a licensee anywhere of a felony or serious offense or a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license” [emphasis added]. It appears that the legislature intended to have DCJS monitor convictions that occur both at the time of application and following license issuance or to notify the licensing official if an offense that was previously not a disqualifying offense becomes disqualifying then the conviction may alter the determination of the licensee’s eligibility to hold a pistol license.

The New York State Senate’s Statement of Support of the bill also supports this position…. The clear legislative intent was to create a process for DCJS to notify the licensing official of disqualifying events mandating revocation of the licensee’s permit. It is therefore also clear that this law was not meant to override the discretionary authority of a licensing official who acts with full knowledge of a conviction when there is no statutory prohibition.

To apply CPL Section 400.02 retroactively in the manner requested by the DCJS would produce exactly the extraordinary result that the presumption against retroactivity is intended to prevent. It would deprive the licensee of his constitutional right to bear arms and the chance to know what the law is and conform his behavior accordingly. Licensee has held a pistol permit for the last 28 years. The fact that his permit has never been suspended or revoked shows that he has comported himself as a responsible permit holder….

Further, the Due Process Clause of both the state and federal constitutions require that an opportunity be provided to the licensee to address the disqualification determination by DCJS. The licensee in this case is exercising their Constitutional right to bear arms, therefore due process requires that an adequate opportunity be provided to the licensee to respond to DCJS’s determination.

 

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If you’re wondering how New York Gov. Andrew Cuomo sees his state’s response to COVID-19, check out the pandemic poster he recently unveiled. In it, the coronavirus is a rocky summit that New Yorkers scaled with “the power of we,” bolstered by additional assistance from health care workers, essential workers, out-of-state volunteers, and his daughters, Cara, Mariah, and Michaela. (The family dog, Captain, stands by for moral support.) Washed ashore is a cruise ship besieged by an octopus, which we can assume is also, in some sense, the coronavirus. “WINDS OF FEAR” blow around while President Donald Trump sits lazily on a half moon crescent. Underneath, a man dangles precariously from “Boyfriend Cliff,” perhaps an homage to quarantine relationships gone astray, maybe a more pointed jab at daughter Mariah’s boyfriend, Tellef Lundevall. (Sorry, Tellef!) But it’s not all doom and gloom: Atop the mountain is a rainbow, studded with a “Love Wins” banner, presumably a shout-out to the gays.

“Forget the politics,” the poster reads, in a quote attributed to Cuomo. “Get smart!” 

The Democratic governor has been the subject of several fawning media interviews over the course of the last few months, many of them conducted by his own brother, CNN’s Chris Cuomo, with whom he’s enjoyed a string of scrutiny-free conversations. This past Monday he appeared on Jimmy Fallon’s first night back at NBC’s 30 Rock Studios for a lighthearted back-and-forth; Fallon praised how “honest” and “smart” Cuomo is. “We’re just worried the infections are going to come from the other states now, back to New York, and that would be a tragedy,” Cuomo said, lauding New Yorkers for “taming the beast.”

Passing the buck to other states is a savvy political move. But it obscures Cuomo’s own response to COVID-19. As of today, New York has seen more than 32,000 of its residents die from the disease. That’s more than seven times the deaths in Florida, about nine times the deaths in Texas, and more than four times the deaths in California. It dwarfs the totals in many European countries, and it nips at Italy’s heels. Of the state’s total, more than 22,000 deaths came from New York City. Compare that to America’s other densely populated metropolitan areas: Los Angeles has recorded under 4,000 deaths, Boston has just over 1,000, Miami is at 1,202, D.C. has 571, Houston comes in at 491, and San Francisco has logged 50. 

Cuomo certainly isn’t to blame for all of the state’s troubles. Plenty of politicians performed poorly, from President Donald Trump down to New York Mayor Bill de Blasio, and some factors were outside any official’s control. But the governor did plenty wrong.

Let’s start with his most egregious misstep. In late March, when COVID-19 measures were still in their nascent stages, not much was known about the virus. One thing that was known, though, was that the elderly were significantly more at risk to die should they contract it. Yet Cuomo issued a mandate requiring nursing homes to accept residents who had tested positive for COVID-19, including those who were still at risk for spreading the disease to others. Since then, around 6,500 people in those facilities—about 6.5 percent of the state’s nursing home population—have died of COVID-19. That’s more than any other state’s total death toll, save for California. Cuomo has declined to share which nursing homes were affected. The directive was not reversed until May 10.

Earlier in March, the governor adopted a blasé attitude about the virus. “This isn’t our first rodeo,” he said at a March 2 press conference, after the state’s first known case was announced. “We should relax.” The governor assured everyone that he was implementing a robust contact tracing program that would track down everyone on the patient’s flight from Iran. That never happened.

Once the outbreaks became more widespread, hospitals across the country began depending on their state governments for oxygen supplies. (Remember that, at the start of these lockdowns, the initial goal was to stem the spread such that hospitals and the emergency stockpiles weren’t overwhelmed.) An over-reliance on Cuomo proved to be a fatal mistake. According to an investigation by The Wall Street Journal, many ventilators sent from the state and city, as well as some from the federal government, were old and faulty, and many patients died on them.

A spokeswoman for NYC Health + Hospitals told the Journal that many such machines “were not ‘ready to go’ when they came” and often required additional maintenance. Several health care workers claim that patients assigned those ventilators often worsened with collapsed lungs or similar complications as the machines were not able to provide proper support.

What’s more, Cuomo’s near-exclusive focus on ventilators neglected to address other hospital needs, such as the demand for supplemental oxygen and oxygen monitors. (Note that the market would have been able to step in here: A spokeswoman for Airgas said in an interview with the Journal that, though the company saw increased demand, it was never unable to fulfill a request for oxygen.) The lack of vital-signs equipment proved detrimental as well. Health care workers detailed stories of patients pulling off their oxygen masks while alone. Without monitors, they died. 

Meanwhile, Cuomo got drawn into a public power struggle with de Blasio. The mayor announced a city-wide shelter-in-place on March 17; Cuomo squashed that on March 18; then Cuomo issued his own stay-at-home order on March 20. Something similar happened when de Blasio announced that the city’s schools would remain shuttered through the academic year: Cuomo declared that only he had that authority and described de Blasio’s order as the mayor’s “opinion.” (New York City almost always makes its own decisions about school closures.)

Whatever you think about either of these policies, the uncertainty engendered by the Cuomo–de Blasio feud did no one any good. A “truly effective leader,” Anthony Fisher wrote at Insider, “would work this all out behind the scenes and not in front of an exceptionally anxious public in need of clear guidance on how they’re allowed to live their lives during a crisis with no end in sight.” And that back-and-forth may have had consequences beyond prompting confusion. The Journal reports that patients in New York City were often transferred between hospitals without the relevant medical and treatment information, even when those patients were not in stable condition. The city blames the state and the state blames the city.

But mixed messaging defined Cuomo’s initial response to COVID-19, which teetered between cavalier and dismissive. Though he’s said he wishes he “blew the bugle” sooner, he has spent considerably more time blaming the press, the experts, and the president.

New York’s crisis moment has passed for now, with the curve flattened and daily deaths bottoming out. De Blasio celebrated a milestone on Tuesday, announcing that, for the first time in months, New York City went a full 24 hours without registering a single death from COVID-19. That’s good news. But if the government’s response hadn’t been so incompetent, that landmark may have come a lot earlier.

“Tell the People the Truth and They Will Do the Right Thing,” the pandemic poster reads, captioned above a cartoon image of Cuomo. If only he took that advice.

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[1.] Late last month, Campus Reform (Michelle Weston) reported:

An Instagram post from the University of California, Irvine Law Admissions page sparked outrage because it spotlighted the Federalist Society, a campus organization that is “a group for people of all ideological backgrounds,” as stated in the post description. Comments under the post include students saying that the timing of the spotlight was “extremely tone-deaf” and “ill-timed” due to claims that the Federalist Society “stands with the establishment and the oppression of the marginalized.”

Commenters referred to the Federalist Society as “racist, sexist, white lawyering,” and “anti-Black, anti-LGBTQ, and fascist.”

The Federalist Society national organization describes itself as “a group of conservatives and libertarians interested in the current state of the legal order,” that “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

After receiving online backlash, UCI Law Admissions issued an apology the following day in another Instagram post for “the timing of the post” and addressed concerns that the comments had been disabled at some point after its posting.

“In our desire to continue to highlight different student organizations each week, we highlighted UCI’s Federalist Society,” read the post. “We do not edit a student group’s self-description. We apologize both for the timing of the post and for disabling comments. We appreciate the members of our community who reached out to us, and welcome conversations with any student or groups of students. You spoke, we will continue to listen, and we will take affirmative steps to evaluate how best to manage this account, keeping your concerns in mind.”

Chapter leaders of the Federalist Society later received a letter from the Student Bar Association, offering an explanation for public condemnation of the post. The SBA wanted to ensure members that they did not mean to make the group “feel divided from our student body” or “to indicate that the Federalist Society should not have been featured on the UCI Law Admissions page” but that they only wanted to “call attention to the fact that admissions handled the timing of the post, and subsequent feedback, poorly.”

The SBA shared that it had “received ample comments from students who support you as an organization and feel that their voices have been minimized.”

This struck me as a bad sign about things at UC Irvine. A law school’s job is to train future lawyers. Lawyers need to be able to understand and respond to a wide range of opinions, and to do that they need to be exposed to those opinions, and participate in debating about those opinions thoughtfully and substantively. That is especially so when those opinions are mainstream views that are held by at least a substantial minority of people, and indeed sometimes by local or national majorities. Even when students are certain of their own views, and want to be advocates for what they see as righteous causes, how can they be good advocates if they’ve never had to squarely confront the views that are held by many judges, jurors, legislators, regulators, and voters?

Given the left-wing ideological skew of most top law schools, especially in California—and there is such a skew, whether you think it’s right or wrong—Federalist Society chapters are tremendously important to providing this sort of rich debate. Apologizing for including the Federalist Society’s mission statement and noting the Society’s presence on campus sends completely the wrong message, not just to Federalist Society members but to other students as well. And of course the explanation that it just has to do with “the timing of the post” doesn’t change matters: If the school is reacting to people’s claims that the Federalist Society is “racist, sexist, … and fascist,” then what, in the school’s view, would be the right “timing” to promote such a group?

I don’t think there’s any First Amendment violation here: I don’t think the school has an obligation to promote student groups on the school’s own Instagram account, and students are of course free to express their own views about other student groups. I just think it’s bad legal education.

[2.] This having been said, I was glad to hear that this week the law school’s dean (Song Richardson) spoke out about this (at an online Town Hall meeting Tuesday). She didn’t respond specifically to the admissions office’s apology, which is too bad in my view; but she wrote me to say,

Thank you for reaching out.  I was planning to reach out to you earlier, but didn’t want to do so until I had a student town hall, which just occurred.

My colleagues and I treated this as a teachable moment about the importance of maintaining an environment where we can have respectful debate on important and controversial subjects, and not ideological conformity.

I also made it clear to the students that I welcome the federalist society and that we must have a culture where its members feel free to express themselves and feel a part of our community as much as the members of any other student organization. I also stressed the importance of learning to listen to ideas that they disagree with and learning to persuade others who hold opinions and beliefs that are different from their own. This is an essential skill for lawyers to have, and fundamental to our liberty and democracy.

And a UCI Federalist Society member who listened in to the Town Hall had a similar account:

[H]ere is an update on the town hall Dean Richardson conducted moments ago. She disabled the public chat so she could give a statement uninterrupted, then concluded the meeting.

She gave an excellent statement about the situation on campus, condemning the “silencing,” “bullying,” “shaming,” and other “unprofessional behaviors” toward faculty and fellow students. She said, “Candidly, some of you have not lived up to UCI’s values.”

She spoke about the need for “dignity, courtesy, and respect” generally, and she brought up several “unprofessional” moments recently both related to the Federalist Society and other controversial situations at UCI Law. She said that “if you want the freedom to express your ideas but you seek to silence others’ views, that is the definition of hypocrisy.” She doubled down later, saying, “If you live your values only when it’s convenient, only when it’s easy, or only when it benefits you, then your commitment to those values is not real…. It is nothing more than shallow window dressing.”

Specifically addressing the reaction to the Federalist Society, she condemned the “bullying,” “shaming,” and “name-calling,” both on social media and in the town hall, committed “against students who have done nothing more than join a student organization.” She clarified that she made a deliberate choice to listen and not respond during her previous town hall so as to allow students to express their frustration and “let it out.” She said she was disappointed by the unprofessionalism exhibited by some students. She cautioned not to take her deliberate choice to listen and not respond as evidence that she condones the “unprofessional comments,” because, she said, “I do not.” She stated plainly, “I hope the Federalist Society continues to exist at UCI Law.”

She made no specific references to accusations of white supremacy or the like, but she generally reaffirmed the school’s commitment to and appreciation of opposing viewpoints, adding that bad ideas should be combated with debate and respectful dialogue, not shaming, silencing, or “wishing them away.” She encouraged us to treat each other with dignity, courtesy, and respect while also not avoiding hard conversations.

How all this will play out in the months and years to come is anybody’s guess. But I thought I’d pass along the details of the law school’s actions, both the bad and the good.

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A passenger is suing American Airlines after flight attendants accused her of kidnapping a one-year-old child in her care. The California woman, Shannon Murphy—a black social worker with the Riverside County’s Children’s Services Division—was bringing a white male child to Arkansas for a court-ordered visit with the kid’s biological father.

On Murphy’s flight back to California, an American Airlines flight attendant approached her to say that another passenger had accused her of abducting the child she was traveling with, according to a lawsuit Murphy filed against the company in Los Angeles County’s Superior Court on June 18. Specifically, the person alleged that the blonde-haired toddler Murphy was traveling with was a five-year-old, black-haired Hispanic child who had gone missing from New York City.

According to the lawsuit, the airline staff made no attempt to corroborate, fact-check, or analyze the credibility of this claim before approaching Murphy. Nor would they check her identification, the child’s birth certificate, or a court order from Los Angeles explaining the circumstances. Rather, a flight attendant “explicitly demanded and implicitly threaten[ed]…that if she did not come with her physical force would be used to make [Murphy] comply,” the suit says. “The one year old Caucasian male dependent was then physically taken” from Murphy and they were detained for “approximately an hour” before being allowed to re-board the held plane.

The suit alleges that they were detained “unlawfully and without probable cause” and that “the acts and actions of [American Airlines] and its agents and security personnel were intentional, willful and maliciously done to injure and oppress Plaintiff and her court appointed ward,” causing Murphy “physical and emotional injury.” It accuses American Airlines of false imprisonment, negligence, and violating Murphy’s civil rights.

Sadly, this far from the first time airline staff have mistaken a multi-racial group of travelers for something sordid and criminal. (See here, here, or here for a few examples.) It is not unusual for interracial couples or parents of adopted or biracial children being questioned and detained at airports over spurious accusations of abduction and “human trafficking.”

This comes alongside state and federal training mandates that tell flight attendants and airport staff that people frequently use commercial flights to traffic women and children for sex (despite no documented evidence of any such thing) and that only vigilant bystanders can thwart these throngs of brazen evildoers.

With the help of Homeland Security and nonprofit groups like the McCain Institute—whose board chair, Cindy McCain, bragged about pointlessly calling the cops on a woman at the airport who was “a different ethnicity” than her child—and Airline Ambassadors International, airline and airport employees are taught to spot a litany of vague and dubious indicators, under the recycled War on Terror mantra of “see something, say something.”

Essentially, the feds are using apocryphal human-trafficking horror stories to encourage people to serve as nervous citizen-spies acting on their biased suspicions.

Obviously, individual employees and corporate policies deserve part of the blame here. (American Airlines is also facing a lawsuit from two black male passengers over alleged racial bias and another from a woman who says a flight attendant assaulted her.) But their actions aren’t happening in a vacuum. They’re happening in the context of a decades-long campaign to conflate sex work and sex trafficking, and a moral panic over the false idea that forced prostitution, especially of children, is widespread.

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From Al Saud v. New York & Presbyterian Hosp., decided by Judge Nancy M. Bannon on June 22 but just posted on Westlaw (2020 WL 3977907):

[T]he petitioner, Talal Bin Sultan Bin Abdul-Aziz Al Saud, who is now 35 years old, alleges that he is the son of Sultan bin Abdul-Aziz Al Saud (the decedent), who was Crown Prince of Saudi Arabia when he died in October 2011 at the New York Presbyterian hospital (NYPH). The decedent underwent surgery at NYPH, during which his tissue and blood samples were preserved pursuant to the business practices of NYPH. NYPH is the only source known to the petitioner having readily available tissue samples of the decedent. The petitioner seeks to test the tissue samples from NYPH in a U.S.-based DNA test to be used as evidence in a paternity action in Lebanon.

By the order dated June 15, 2018, the court denied the petition because no paternity proceeding had yet been commenced and no other action was pending in another jurisdiction and, as such, the petitioner failed to properly submit proof of his entitlement to pre-action disclosure pursuant to CPLR 3102(e). The petitioner appealed. Meanwhile, the petitioner also moved to renew and reargue, after he filed a filiation action in Lebanon. In support of that motion, the petitioner submitted proof and new evidence including two photographs of the petitioner and the decedent purporting to show a resemblance between the two, an affirmation of the petitioner’s mother, Hanaa Faek El Mghayzel, detailing her relationship with the decedent and averring that the petitioner was his son, and three affirmations from Lebanese attorneys averring, inter alia, that DNA evidence is acceptable proof in cases of lineage confirmation in Lebanese court….

And then it all goes downhill:

This court, in its July 15, 2019 order, granted the petitioner’s motion to renew and … granted the petition to the extent of ordering … production of the blood and/or tissue samples held by the respondent to an accredited testing laboratory, and for such laboratory to conduct a genetic marker testing to determine the petitioner’s paternity, subject to adequate confidentiality protections….

On August 7, 2019 the Lebanese action was dismissed on the jurisdictional ground that neither the petitioner, his mother, nor the decedent were Lebanese nationals. The petitioner appealed that determination in the Lebanese action to the Court of Appeal of Mount Lebanon ….

On August 19, 2019 the respondent filed the instant motion seeking leave to renew and reargue the court’s July 15, 2019 order, and dismissal of the petition or, alternatively, a stay of the court-ordered disclosure. The respondent argues that the Lebanese court’s dismissal of the filiation action means that there is no pending foreign proceeding, thereby vitiating any grounds for relief under CPLR 3102(e)….

The respondent does not dispute that the dismissal of the filiation proceeding is not final until the appeal is decided and that new evidence may be considered on appeal. Instead, it argues: 1) jurisdictional issues will prevent the Court of Appeal from reaching the merits of the filiation claim, 2) the petitioner has not explained how he would be able to submit the results of any genetic testing prior to the Court of Appeal hearing, and 3) there was no actual order or subpoena issued by the foreign court requiring production of the tissue samples.

Although the petitioner does not discuss how he intends to overcome the jurisdictional hurdles that led to the initial dismissal of the Lebanese proceeding, or how he intends to present the results of the genetic testing he seeks, this court cannot not speculate or opine on the likelihood of success of the petitioner’s appeal in the Lebanese courts. Nor would any such opinion be germane to the underlying issue here of whether there is currently an action pending within the meaning of CPLR 3102(e)…. [A]s an action is considered pending from its inception until the issuance of a final judgment, there has been no final judgment in the Lebanese action until there is proof submitted to this court in admissible form that the Lebanese action is finally determined and no longer pending….

Nor does the court find merit in the branch of respondent’s motion seeking, in the alternative, a stay of the petition pursuant to CPLR 2201 pending the disposition of the appeal in Lebanon…. “[I]t is only where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both actions that a case for a stay is presented… What is required is complete identity of parties, causes of action and judgment sought.” Here, no such identity exists. The respondent merely seeks a stay of the petition in the hopes that dismissal of the Lebanese action on jurisdictional grounds will moot the petition. Despite the respondent’s posture, even were the Lebanese action dismissed on jurisdictional grounds, the relief sought in the petition would not be moot, as the petition could still be granted under CPLR 3102(c).

In that regard, the court notes that on February 26, 2020 and March 6, 2020, the court received letters from counsel for the respondent purporting to attach a decision disposing of the appeal on jurisdictional grounds. According to the purported translation of the decision and unsworn letter from its counsel, on February 26, 2020, the Court of Appeal of Mount Lebanon denied the petitioner’s appeal entirely on jurisdictional grounds stating:

“Whereas regarding the current case, it appears there are no correlating elements pointing to the jurisdiction of the Lebanese courts, the relevant parties in the present case being all non-Lebanese, the subject of the case having no relation with Lebanon and not being associated to any interests existing in Lebanon, which means that the correlating elements to the jurisdiction of the Lebanese courts are totally inexistent in this case, since it relates to Saudi personal data of a person declaring he is a Saudi national and that his father is a Saudi national and his mother of the Syrian nationality, which means that the jurisdiction in this respect, is ipso jure interrelated to the Saudi courts.”

 

The respondent also attaches to his letter an affidavit from Alexandre Sakr, a senior partner of the ElKhoury Law Firm and professor of civil procedure and legal terminology at the Saint Joseph University Law School in Beirut. In his affidavit Sakr avers that following the Court of Appeals in Lebanon dismissing the petitioner’s filiation case, the judgment is final and enforceable, but is subject to a recourse proceeding before the Court of Cassation in Lebanon, which would review the legal basis for the determination of the Court of Appeals in Lebanon, and were it to quash the challenged judgment, would have the authority to examine the merits of the case and consider additional evidence that may be submitted.

However, a letter from the respondent’s counsel does not constitute a basis to deny the petition upon the granting of the renewal as it violates the court’s rules against both the submission of letters to the court in further support of motions and against supplemental submissions concerning motions without court approval. Thus, the respondent has not satisfied its burden to dissuade the court from adhering to its prior ruling granting the relief sought in the petition.

Additionally, ignoring these defects in the respondent’s unauthorized submission, the petitioner’s counsel submits its own letter in response stating that the petitioner intends to appeal the decision to the Lebanese Court of Cassation, within 60 days of the notice of judgment if the Court of Cassation permits it to do so. The petitioner’s letter further corroborates the Sakr affidavit inasmuch as it notes that the Court of Cassation likewise has the authority to consider evidence not submitted to the lower court in the same fashion as the prior Lebanese appeals court. Although the petitioner’s letter is also an impermissible submission, it further supports the granting of his petition. As discussed above, even if the decision of the lower courts in Lebanon are on appeal, it appears to this court that they are still pending within the meaning of CPLR 3102(e).

 

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Portland has been a disorderly mess for some time now, but new allegations that unidentified federal officers in unmarked vans are snatching people off the street and whisking them away to undisclosed locations require prompt and full answers from the Trump administration.

From Oregon Public Radio:

Federal law enforcement officers have been using unmarked vehicles to drive around downtown Portland and detain protesters since at least July 14. Personal accounts and multiple videos posted online show the officers driving up to people, detaining individuals with no explanation of why they are being arrested, and driving off.

From the Washington Post follow-up:

Pettibone said he still does not know who arrested him or whether what happened to him legally qualifies as an arrest. The federal officers who snatched him off the street as he was walking home from a peaceful protest did not tell him why he had been detained or provide him any record of an arrest, he told The Post. As far as he knows, he has not been charged with any crimes.

Videos from the streets of Portland are hardly comforting. As our own Orin Kerr notes:

Lots going on in this story, but let me point out just one: If agents are seizing people, throwing them in vans, driving them around, bringing them to the courthouse, putting them in cells, & trying to interrogate them, over hours, that's an arrest that requires probable cause.

— Orin Kerr (@OrinKerr) July 17, 2020

If the reports are true, this is dangerous and inappropriate and should be stopped immediately.

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More than 120,000 American schools have closed since March, a change affecting more than 55 million students. As we approach August, an intense debate about reopening schools has been brewing. One side argues that schools should reopen so that families can return to work and children can receive the education taxpayers have paid for. The other side says that schools cannot reopen safely without $116 billion more in federal funding, on top of the $13 billion already allocated to states to reopen schools.

This debate wouldn’t be so contentious if we funded students instead of school systems. The funding could follow children to wherever their families feel they would receive an effective education, be it a district-run school, a charter school, a private school, or a home setting. In that situation, if an individual school decided not to reopen—or if it reopened unsafely or inadequately—families could take their children’s education dollars elsewhere.

That is how food stamp funding currently works. If a neighborhood grocery store refuses to reopen, it may be inconvenient, but families wouldn’t be devastated; they could take their money elsewhere. Imagine if you were forced to pay your neighborhood Walmart the same amount of money each week regardless of whether they provided your family with any groceries. The store would have little incentive to reopen in an effective or timely manner.

It sounds absurd. But you have essentially just imagined today’s compulsory K–12 school system.

And it’s even worse than that. Even if the institution were required to provide goods and services through online or other platforms, it would still have weak incentives to get things right, because families would still be powerless.

New data show that’s precisely what happened with the K–12 school system during the lockdown. 

A nationally representative survey conducted by Ipsos Public Affairs found that private and charter schools were substantially more likely to continue providing students with meaningful education services during the lockdown than traditional public schools.

The survey found that private and charter school teachers were more than twice as likely to meet with students daily than teachers at district-run schools. Private and charter schools were about 20 percent more likely to introduce new content to their students during the lockdown. About 1 in every 4 traditional public schools simply provided review material for what students had already learned before the closures. Arlington Public Schools, for example, decided in April not to teach students any new material for the rest of the school year.

Another national survey, this one conducted by Common Sense Media, found similar results. Private school students were more than twice as likely to connect with their teachers each day, and about 1.5 times as likely to attend online classes during the closures.

A recent report by the Center for Reinventing Public Education found that only 1 in 3 school districts examined required teachers to deliver instruction during the lockdown, and less than half of all districts expected teachers to take attendance or check in with students regularly.

And just yesterday, The New York Times reported that in many towns, private schools are reopening while public schools are staying closed.

Traditional school systems’ failure to adapt to COVID-19 helps explain why many families are turning toward homeschooling. A new nationally representative survey by EdChoice and Morning Consult just found that the pandemic has made families about 2.4 times as likely to have a more favorable view of homeschooling as they are to have a less favorable view. Another national poll, this one by RealClear Opinion Research, found that 40 percent of American families say they are now “more likely” to homeschool after the lockdowns end. So many families in North Carolina committed to homeschooling this month that they crashed the state government’s website.

This might also explain why the new national Education Next survey found that parents were substantially more satisfied with private and charter schools’ responses to the pandemic than they were with those of district-run schools. Parents of children in private and charter schools were at least 50 percent more likely to report being “very satisfied” with the instruction provided during the lockdown than parents of children in traditional public schools.

These results aren’t surprising. Private schools can adapt to change more effectively because they are less hampered down by onerous regulations than their government-run counterparts. Choice schools also have real incentives to provide meaningful educations to their students while reopening safely. Private and charter schools know that their customers—families—can walk away and take their money with them if they fail to meet their needs.

K–12 students have been getting the short end of the stick for far too long. But it doesn’t have to be this way: We could fund students directly and truly empower families. Legislators in Pennsylvania and Maryland have already made proposals to partially fund families directly in the fall. Hopefully they’ll succeed—and hopefully more states will follow.

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