Tag: hit&run

Check out this news story from Thursday’s Virginian-Pilot (Jane Harper); I found it especially because it’s unusually rich in personal detail. A brief excerpt:

“She was about the third one to come around the corner, and her eyes got so big when she saw me,” he said with a laugh. “I was just like, ‘Look lady, I don’t even know how to explain how I got here.'”

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From Kiwewa v. Postmaster General, 2019 WL 4122013 (6th Cir. Mar. 26, 2019) (nonprecedential) (just recently made available on Westlaw):

In 2013, the United States Postal Service terminated [Willy] Kiwewa due to alleged performance issues and failure to follow rules and regulations. Kiwewa thereafter filed an employment-discrimination suit pursuant to Title VII of the Civil Rights Act of 1964. The parties consented to final disposition of the proceedings by a magistrate judge, who granted summary judgment in favor of the Postmaster General. We affirmed the district court’s judgment.

While his appeal was pending in this court, Kiwewa filed a motion to seal the district-court record. He argued that online access to the summary-judgment order was preventing him from being hired, that his minor children could be identified through their shared last name, and that the record contained his date of birth and other sensitive information….

The public has a “presumptive right … to inspect and copy judicial documents and files[,]” and “[o]nly the most compelling reasons can justify non-disclosure of judicial records.” In balancing these factors, a court may “consider, among other things, the competing interests of the defendant’s right to a fair trial, the privacy rights of participants or third parties, trade secrets, and national security.” Where a court concludes that a compelling reason exists to seal records, “‘the seal itself must be narrowly tailored to serve that reason,’ and should ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.'”

The district court did not abuse its discretion. First, Kiwewa merely alleged harm to his reputation by asserting that online access to the summary-judgment order was preventing him from being hired. Harm to reputation is insufficient to overcome the strong presumption in favor of public access, especially where, as here, the party who filed the suit alleges harm from the public availability of the record.

Second, Kiwewa’s assertion that his minor children could be identified through their shared last name and would suffer harm is too attenuated to constitute a compelling reason to seal the record. His children were not named or otherwise mentioned in the record.

Third, Kiwewa failed to identify accurately below any place in the record that contained his date of birth or other sensitive information. His sole reference to a page in the record that purportedly contained his date of birth was incorrect. The three citations identified for the first time in his appellate brief are not properly before the court. In any event, Kiwewa’s social security number was properly redacted in the only cited document filed by the defendant. And Kiwewa waived his right to privacy protection under Federal Rules of Civil Procedure Rule 5.2(a) by filing the other two documents without redaction and without moving to file them under seal. Thus, Kiwewa did not meet his burden of overcoming the presumption of openness.

Magistrate Judge Karen L. Litkovitz’s opinion below discusses this in greater detail.

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Located near Raton, New Mexico, the Frank Brownell Museum of the Southwest is a small and excellent firearms museum. The museum also has a library of great utility to anyone researching firearms.

The museum and library are part of the Visitor Center at the NRA Whittington Center, a 52-square-mile target shooting and hunting complex open to the general public. While admission to the Whittington shooting facilities requires a $20 daily fee, the museum and the library are free of charge.

The Museum’s collection is contained in a single room, about 35 x 35 feet. (Plus some additional items in the Visitor Center lobby). This is much smaller than the NRA’s other two museums: the National Firearms Museum in Fairfax, Virginia, and the National Sporting Arms Museum, in Springfield, Missouri. Within the size constraints, the Museum of the Southwest is a fine introduction to its subject. An enagaged visitor could study the museum’s contents in about an hour.

Most of the firearms are contained in 22 standing cases in the interior of the room. These are supplemented by several vertical displays along the walls depicting U.S. and New Mexico history. The upper walls of the room are ringed by American service rifles, starting with the Brown Bess from colonial days, up to the modern M-16.

The display cases also include numerous non-firearms artifacts, such as tomahawks, knives, powder horns, and other tools used by Indians, mountain men, or soldiers. All the displays are beautifully arranged, with good descriptions of every item.

As the Museum’s name indicates, the focus is on the Southwest, especially New Mexico, starting with Spanish colonial days and covering the mountain men, the Civil War, Indian wars, and the Wild West. The other half of the displays cover a wide range of American history, with particular attention to the history of competitive shooting, and iconic firearms from Winchester and Colt.

The collection is primarily American firearms, except for some guns related to the colonial period, plus a few other interesting non-American guns. Rifles and handgun predominate, with only a few shotguns. (And of course some early smoothbore muskets and the like.)

The Museum strikes an excellent balance for all sorts of visitors. For persons who have never been to a firearms museum, it is an outstanding introduction to the history of firearms in America. At the same time, sophisticated collectors and historians will find many interesting items.

Once you’re done with the Museum, the Bud & Wilma Eyman Research Library contains its own mini-museum: the Robert G. Rowe and Alexander Black ammuntion collection. It consists of about a hundred drawers of rifle and handgun ammunition, plus nearly another hundred more drawers of shotgun ammunition. The rifle and handgun drawers are more user-friendly, since every cartridge is separately labeled. You’ll find the tiny 2mm cartridge, old-fashioned pinfire cartridges from the mid-nineteenth century, up to cartridges for anti-tank weapons of the twentieth century. Plus everything in-between.

Shotgun shells are much larger than rifle and handgun cartridges, and so, unfortunately, the shotgun ammunition is not individually labeled. Rather, the shells are categorized by country of origin, and then jammed side-by-side into rows within the cases. This makes for a colorful display of, for example, shotgun shells from Mexico, but there’s no information about any particular shell. Such labeling would require vastly more drawer space than the library presently contains.

As for the library books, part of the collection is general military history (e.g., Civil War, Vietnam). This is fine as far as it goes, but the collection is no deeper than can be found at the main public library in a major city. Where the library shines is its collection of firearms-specific books. It is especially strong on gunsmithing and reloading (home manufacture of ammunition from used shells or cases), past and present.

Since the Internet has created a national market of used books, I wouldn’t say that it’s impossible for a researcher on a given firearms topic to buy almost all of what can be found in the library’s collection. But any researcher who can make the trip to Whittington will get a big head start.

The museum and library are each in rooms next to the Visitor Center’s Pro Shop/Gift Store. Since Whittington is a very large recreational shooting facility, the Pro Shop stocks ammunition, firearms, and lots of accessories. The size and inventory might match what you could find at a small, high-quality gun store; of course that’s much less than what’s available at megastores such as Sportsmen’s Warehouse, Bass Pro Shops, or Cabelas. The gift store includes clothing, souvenirs, knives, jewelry (lots of turquoise), and other items. As one might expect, the Visitor Center has plenty of taxidermy.

The main limitation of the Visitor Center, and of Whittington itself, is the lack of food. The only beverages for sale are from a vending machine, and there’s no food, other than a few souvenir items in the gift shop. The shotgun area has a cafeteria that is open only for special events, such as the many national competitions held at Whittington.

As for shooting at the Whittington Center, the numerous shooting ranges are in a flat area that comprises about 10 percent of the land. The rest of the 52 square miles are for guided hunting in mountain canyons. The Center has extensive overnight accommodations, at various price points. Far from city lights, and at an elevation of 7,000 feet, the nighttime stargazing and views of the Milky Way are spectacular.

For shotgun shooters, there are many ranges for skeet, trap, and sporting clays. Rifle and handgun shooters also have numerous options. For beginners, short-range metallic silhouette shooting is especially fun. The long-distance and ultra-long distance rifle ranges offer opportunities difficult to find at most ranges near urban areas.

Many visitors enjoy trying to hit the White Buffalo, a 6 x 10 foot steel target located at 1,123 yards on the long-distance rifle range. On my last visit, I hit it with a friend’s bolt-action Ruger Precision Rifle, a Lucid scope, and some guidance from an experienced rifleman.

Of course most people come to the Whittington Center for the shooting; the museum and library are underpublicized. Whether or not you want to go shooting, if you’re ever on the beautiful highway between Taos and Raton, New Mexico, the Frank Brownell Museum of the Southwest is well worth a visit.

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Florida is preparing for Hurricane Dorian, which is predicted to be a Category 4 when it makes landfall on Monday. 

On Wednesday, Gov. Ron DeSantis (R) has declared a state of emergency for several counties in the hurricane’s path. According to Florida Statute, Section 501.160, it is against the law for a business to sell an essential commodity for an amount that “grossly exceeds the average price at which the same or similar commodity was readily obtainable in the trade area during the 30 days” during a declared state of emergency. 

As of this weekend, Florida Attorney General Ashley Moody has activated the state’s price gouging hotline. If a business is caught charging significantly elevated prices for goods, it could face a civil fine of $1,000 per violation.

But sky-high prices can be vital information to suppliers and customers who are facing a natural disaster. “Prices are not just money. They are information,” John Stossel explained in 2018. “They are what signal entrepreneurs to go into a given business. Rising prices are the clearest indicator of what most customers want.”

Jerry Taylor and Peter Van Doren argued something similar in a 2003 commentary piece for the Cato Institute:

Gougers are sending an important signal to market actors that something is scarce and that profits are available to those who produce or sell that something. Gouging thus sets off an economic chain reaction that ultimately remedies the shortages that led to the gouging in the first place. Without such signals, we’d never know how to efficiently invest our resources.

High prices also help prevent a handful of consumers from hoarding the majority of supplies.

“A husband and father who doesn’t know how long his town will be without gasoline or drinking water might be inclined to buy as much as he can haul away. If several people do that, supplies run out quickly,” A. Barton Hinkle wrote in 2017. “This is the market’s extremely efficient way of rationing scarce goods.”

“Price gouging—like spinach—may be unappealing at first bite,” write Taylor and Van Doren, “but it’s good for everyone in the long run.”

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Just days before many kids in the United States return to school from summer vacation, President Donald Trump’s administration responded in the U.S. District Court for the Southern District of New York to a multi-state lawsuit challenging its watered-down requirements under the U.S. Department of Agriculture’s (USDA) National School Lunch Program.

The lawsuit, which was filed earlier this year by attorneys general from several states, including California and lead plaintiff New York State, claims the Trump administration didn’t take the proper steps to amend the rules, which the suit argues contravene the will of Congress. The suit claims the USDA’s 2018 actions were not “‘consistent with the goals of the most recent Dietary Guidelines for Americans’ [nor] ‘based on’ the Nutrition Board’s recommendations, as required by the School Lunch Act.” The suit also alleges the rules are not—as required—based on “tested nutritional research.” And it claims the amended requirements “significantly weaken the nutritional requirements for sodium and whole grains applicable to the school lunch” program. 

The Obama administration’s changes to the National School Lunch Program, championed by then-First Lady Michelle Obama and adopted in 2012, modified requirements for sodium, whole grain, milk, and fruits and vegetables served as part of the school lunch program. In 2018, the Trump administration rolled back many of those changes. 

“The reforms were announced this week by new USDA Secretary Sonny Purdue under a plan to—honestly—’Make School Meals Great Again,'” I wrote in a 2017 column on the Trump administration’s new approach. “That headline should tell you all you need to know about the Trump administration’s plans.”

Still, the inanity of Trump’s plans doesn’t mean the changes advocated by First Lady Obama and her husband’s administration were any good. “[T]he Obama administration’s food is not great food,” I noted in 2017. 

I’ve documented many of the problems with the USDA’s National School Lunch Program over the years. In a 2014 column on the First Lady’s school lunch reforms, I noted some of the flaws in those efforts: students and school districts fleeing the program in droves, soaring costs, and “unprecedented mountains of food waste.” Claims that the quality of food served under the program improved after the First Lady’s reforms are dubious, to say the least.

I’ve also noted many times, including in my recent book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, how wresting the program from the USDA and shifting power over school food to local communities could be all that’s needed to improve the foods students eat at school and cut down on the massive amount of food waste the problem causes. 

The states sued the USDA last year under the legal theory of parens patriae, arguing that the states are acting on behalf (and representing the interests) of those who cannot speak for themselves; in this case, low-income families and their children who eat school lunches. “The 2018 Rule will expose children who live in the States and eat meals in schools to health consequences to which they would not have been exposed if USDA had not eliminated the final sodium target… and lowered the whole-grain requirement,” the suit alleges.

This week’s federal government response sought to pour cold water on that theory. As Reuters reported, the USDA argued in its response that “states have no power to sue over new rules they say make school meals less healthy.”

Regardless of which side wins, the only sure losers are America’s taxpayers and its schoolchildren. Many of the latter will have little choice but to eat the lousy food that’s served in most public schools. 

I argued two years ago that walking the school lunch program back a few years is a big idea only to small minds. That hasn’t stopped New York, California, and a handful of other states from fighting with the USDA over school-lunch minutiae instead of implementing sorely needed, wholesale reforms to the program.

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Digital Cash: The Unknown History of the Anarchists, Utopians, and Technologists Who Created Cryptocurrency, by Finn Brunton, Princeton University Press, 272 pages, $26.95

As bitcoin turns 10, a new book aims to chronicle the digital currency’s ideological origins. “The technology alone is not enough,” Finn Brunton writes in Digital Cash: The Unknown History of the Anarchists, Utopians, and Technologists Who Created Cryptocurrency. “Even with good math, scientific discoveries, the free circulation of ideas, reliable hardware and running code, you need a desire, a vision, a dissatisfaction, a fantasy, a story.” The source of that story was a movement called the cypherpunks, which started to coalesce in the late 1980s. In turn, the cypherpunks did not appear sui generis but were the culmination of decades—centuries, really—of broadly libertarian thought and activism.

Brunton, who teaches in New York University’s media department, first offers an overview of the history of monetary authentication, then traces cryptocurrencies’ roots to several offbeat subcultures. He finds precursors ranging from the Great Depression–era group Technocracy Inc. to the Extropians, a band of trailblazing transhumanists and accelerationists that flared up in the ’80s. (The Extropians’ plans included cryonic timeouts: If their preferred future didn’t come fast enough, they planned to freeze themselves and wake up later.) Another chapter examines gold bugs and devotees of Austrian economics, who took the 2008 recession as a vindication of their contempt for central banking. Digital Cash even voyages into the niche waters of seasteading, an old idea that has garnered new interest since the early 2000s.

Brunton argues that “early Bitcoin itself was understood as a utopian, speculative currency in the context of libertarian dreams: digital cash built for verifiably inflation-proof production, in anticipation of a redemptive economic emergency.” Cryptocurrencies appeal to fringe optimists and fringe pessimists alike, with tenets encompassing both monetary romanticism and economic eschatology.

Brunton argues that these subcultures’ clustered worldviews laid the groundwork for Satoshi Nakamoto’s synthesis of cryptography and Austrian economics—that is, for bitcoin. This observation is at once banal and profound.

On the banal side: Of course people’s intellectual fascinations lead them to corresponding social milieus. And when you’re dealing with people who have been striving for years to extricate money from state control, of course those social milieus are often on the fringes. “You can’t really work in cryptocurrency without an openness to weird ideas,” Neeraj Agrawal of the cryptocurrency think tank Coin Center told me in 2017.

On the profound side: As with any historical development, the creation of bitcoin was situated, both temporally and conceptually. Nakamoto, the technology’s pseudonymous inventor, was indisputably brilliant. But he drew on copious prior art and collaborated with like-minded software iconoclasts. Brunton shows the social context that allowed Nakamoto’s idea to appear.

He also notes another important piece of social context: Bitcoin “could not have existed without markets for digital moving images, especially video games, driving down the price of microchips,” or without readily available electricity. And then there’s the trial-and-error process that involved several other attempts to create an electronic currency, such as DigiCash, Hashcash, and b-money. “This,” Brunton writes, “was not a technology that fell out of the cargo bay of a UFO.”

The cypherpunk subculture that Nakamoto frequented had its own complex trajectory, branching off from nexus points shared with adjacent social clumps. Cryptocurrency enthusiasts are a fragmented and contentious group, but Digital Cash attributes their ardor for the technology to a common set of assumptions about the world.

In brief, the cypherpunks believed that individual freedom is paramount, that any centralized system with no right of exit will inevitably abridge your liberty, and that technology can obviate concentrations of nonconsensual power, reconfiguring society so that people can be left alone unless they welcome interference.

Brunton believes that the cypherpunks’ activities, and those of the other subcultures he explores, are best understood as expressions of longing for particular far-term outcomes, undertaken with varying levels of pragmatism. He argues that any form of money “acts as a model of the future—but always the future within a particular time.”

Digital cash is an elegant engineering solution, a social and communal phenomenon, and the instantiation of particular philosophical assumptions. “The people this book studies organize themselves and their speculative monies in terms of powerful fantasies of the future,” Brunton writes. Their vision, as he describes it, is that “society might be irretrievably and utterly disrupted, with money as the mechanism of transformation and the escape route out of the present into the future.”

Bitcoin routes around state control of money. The endgame for many crypto-currency enthusiasts is a complete replacement of traditional finance and a move toward market anarchism. Current “bitcoin maximalists” exemplify this attitude; newer communities like the one around Ethereum tend to diverge in messy and idiosyncratic ways.

To my mind, Brunton is correct. We who are invested in digital cash—financially, ideologically, or otherwise—tend to be dreamers. We are cynical about incumbent systems but starry-eyed enough to hope that remaking the world’s economic foundations will fix everything else too. It may be grandiose to imagine that this is possible, but the imagining is what fuels efforts toward concrete progress.

For example, an open-source project called BTCPay Server recently launched a self-hosted, uncensorable alternative to Kickstarter. The team opened its announcement with a statement of lofty ideals: “Our core belief is that everyone deserves the right to have total control over their finances and that trusted third-parties are security holes.” (The latter phrase is a direct reference to a seminal essay by the cypherpunk luminary Nick Szabo.)

When it comes to cryptocurrency projects, disentangling the sci-fi mission from practical execution is impossible. Cypherpunks are applied futurists: It’s fun to sit around workshopping ideas, but it’s much more effective to write code that increases the probability of your preferred end state.

Generally speaking, Brunton’s sociological treatment of cryptocurrency enthusiasts holds up. I might quibble about some of the inclusions—I’m skeptical that seasteaders were especially important to either bitcoin or the cypherpunks, for example—but the overall narrative is convincing.

And to his credit, Brunton explains the relevant technologies lucidly. “What secures the scarcity of this kind of digital cash is the transformation of energy into heat by friction; it is a currency whose production and transaction are constrained by expenditure, by waste,” he writes, distilling the concept known as proof of work. “Bitcoin wasn’t magic but a technology in context, and part of that context was the power grid, the business of microchip fabrication, and the planet’s atmosphere.”

Yet Digital Cash has a couple of baffling oversights. Later in the book, Brunton tries to figure out why the gold bugs at the libertarian gathering PorcFest are attracted to bitcoin, “since much of the contempt for [fiat bank notes] began with the idea that nothing backed them but promises.” He appears to have forgotten how he himself described proof of work; his puzzlement implies that bitcoin, like fiat currencies, is backed by nothing.

On the contrary: While there is no centrally controlled reserve a la Fort Knox, cryptocurrencies are backed by the energy expenditure necessary for computation—the marginal cost of each newly “minted” coin or transaction, on top of the capital required to amass mining hardware in the first place.

On the next page, Brunton writes, “Cryptocurrencies in circulation are nothing more or less than records of creation, ownership, and transaction in the blockchain ledger: their existence is constituted by the user-visible records of their existence.” While technically correct, this sentence elides the continual investment that sustains the system.

Brunton is also surprisingly blasé about the decentralization built into cryptocurrencies. Bitcoin is structured to allow disparate people and groups to collaborate based on the profit motive, without any single entity being able to seize control. He describes technologists’ fears in the late 20th century: “Electronic money could serve as a control apparatus for making the marketplace into a rapid response system for the police, a location log, and a Skinner box for rewarding and denying citizens into doing what corporations or governments wanted.” All of the above has happened under traditional payment systems: It is extraordinarily difficult, perhaps impossible, for controversial businesses like the alt-right social media site Gab to retain credit-card processing services—not to mention the numerous difficulties that sex workers (including legal ones) have faced transacting with customers and securing their personal finances. Yet Brunton devotes surprisingly little space to discussing censorship and its chilling effects.

Despite such lapses, Digital Cash is a good book. Even experienced denizens of the cryptocurrency space are likely to learn something from it. Brunton comes across as a thoughtful outsider, one who takes bitcoin and the ideas embraced by its users quite seriously.

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In two unanimous rulings issued over the last week, the US Court of Appeals for the Fifth Circuit ruled that criminal court judges in New Orleans, Louisiana have an unconstitutional conflict of interest, because the money collected from fees and fines imposed on defendants goes to subsidize their courts’ operations. Nick Sibilla of the Institute for Justice summarizes  the two cases in an article for Forbes:

Due to their “institutional interest” in generating court revenue (a “substantial portion” of their budget), the judges of the Orleans Parish Criminal District Court “failed to provide a neutral forum,” which in turn violated the constitutional right to due process.

The first case, Cain v. White, centered around half a dozen criminal defendants who pled guilty and subsequently faced fines and fees ranging from $148 to $901.50. When they couldn’t pay up, OPCDC authorized warrants for their arrest, threw them in jail, and set their bond at $20,000….

Distressingly, some of the fines and fees were deposited into a “Judicial Expense Fund,” which the Orleans Parish judges have “exclusive authority” over. One quarter of the Fund’s revenue—around $1 million—comes directly from the fines and fees the court collects. Though judges can’t use the Fund to pad their own salaries, they can use it to pay the salaries and benefits of court personnel, as well as a wide array of miscellaneous expenses, including conferences, coffee, drug testing, and pest control.

In a similar vein, the second decision, Caliste v. Cantrell, involved a Louisiana law that sent 1.8% of a commercial bail bond’s value towards the same Fund. As the Fifth Circuit noted, “The bond fees are a major funding source for the Judicial Expense Fund, contributing between 20–25% of the amount spent in recent years.”

Judge Gregg Costa’s opinion in Caliste summarizes the legal issue involved:

“No man can be judge in his own case.” Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke’s ruling that a judge could not be paid with the fines he imposed. Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio, 273 U.S. 510, 523 (1927).

This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond’s value goes to a fund for judges’ expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds….

“Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant… denies the latter due process of law.” [Tumey, 273 U.S.] at 532…..

Judge Cantrell has a direct and personal interest in the fiscal health of the public institution that benefits from the fees his court generates and that he also helps allocate….

His dual role—the sole source of essential court funds and an appropriator of them—creates a direct, personal, and substantial interest in the outcome of decisions that would make the average judge vulnerable to the “temptation . . . not to hold the balance nice, clear, and true.” Tumey, 273 U.S. at 532. The current arrangement pushes beyond what due process allows.

Judge Costa rightly emphasizes that the proper standard should be a conflict that would be a source of temptation for the “average man,” not one that assumes that judges are better able to withstand temptation than mere mortals.

It is perhaps worth noting that the judges who joined in these rulings span the political spectrum. Judge Costa is a liberal Obama appointee, as is Judge Graves, author of Caine v. White. But Judge James Ho, who joined in the court’s opinion in Caine is a conservative appointed by Trump. Reagan appointee Judge Edith Jones, who joined the ruling in Caliste, is, in my view, the most conservative judge on the Fifth Circuit,  if not in the entire federal appellate judiciary; she is not generally known for rulings favoring criminal defendants.

The specific funding system in the New Orleans cases may be unusual. But as Sibilla explains, similar conflicts of interest exist in other parts of the criminal justice in many states. He notes the examples of local governments and judicial systems that use court fees and fines as “ATMs” to finance their operations, such as the notorious abuses of power a 2015 Justice Department report documented in Ferguson, Missouri.

Another common scenario arises from asset forfeiture policies under which police forces get to keep the profits from assets  confiscated from owners on the theory that they may have been used in the commission of a crime—including in many cases where the owner was never even charged with an offense, much less convicted. In many jurisdictions, asset forfeitures are carried out with little opportunity for owners to challenge the seizures. The problem has been exacerbated by the Trump Administration’s reinstatement of the “equitable sharing” program, under which the federal government helps state and local police forces circumvent state law limitations on asset forfeitures, and thereby keep more loot for themselves.

Last year, a federal court in New Mexico struck down a particularly egregious asset forfeiture program in Albuquerque because it violated due process, by creating a conflict of interest. Hopefully, the two recent Fifth Circuit decisions will help generate momentum for further rulings along the same lines.

If it is a violation of due process for judges to indirectly profit from their own rulings, the same reasoning applies to cops who similarly profit from the fines and asset forfeitures they impose on citizens. In fairness, one can argue that conflicts of interest on the part of police and other law enforcement officers are not as egregious as those that involve judges, because the former do not make final decisions about the fate of the accused. But, in many situations, decisions by police have an enormous impact on the outcome, especially given that judges and prosecutors often defer to the police on various issues. That is particularly true in the case of asset forfeitures, where procedures make it extraordinarily difficult for owners to recover their assets once police have made the initial decision to seize them. Like judges, police exercise enormous discretion over the fate of suspects—discretion that should be free of self-interested temptations that are likely to bias the decision-making of “the average man.”

As the Fifth Circuit explains, the legal principles involved here have deep roots in the Anglo-American legal tradition’s conception of “due process.” But they are also just basic common sense. It’s dangerous to have judges—and police officers—who stand to profit from imposing fees and fines on people, or from seizing their property. Not because judges and cops are unusually bad people, but because they are subject to the same temptations as the rest of us.

NOTE: I clerked at the Fifth Circuit many years ago (for a judge who was not on either of these panels). I know both Judge Ho (who clerked for the same judge as I did, two years before me, and helped interview me for the clerkship position), and Judge Jones (whose chambers were down the hall from those of my own judge). I do not believe these connections bias my views of the two cases—both of which were decided long after I ceased to be a Fifth Circuit clerk. But I thought I would note this history here, nonetheless. A post about conflicts of interest should probably err on the safe side in such  matters!

 

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From the opinion of the Maryland Court of Appeals (Maryland’s highest court) in the case of In re S.K., decided this past week:

“Like all teenagers, S.K. sought to impress and humor her closest friends. During the 2016–17 school year at Maurice J. McDonough High School in Charles County, Maryland, the 16-year-old female maintained a group chat on her cellphone for text messages with her best high school friends, A.T., another sixteen-year-old female, and K.S., a seventeen-year-old male. The group chat was used, among other things, to send silly photos and videos in an effort to “one-up” each other. The trio hung out together and trusted one another to keep their group messages private.

As part of the “one-up” competition, S.K. sent a one-minute video of herself performing fellatio on a male. Later in the school year, when there was a falling-out among the trio of friends, the video was distributed to other students at the school and shared with the school resource officer.

For reasons that elude me, the State’s Attorney for Charles County MD thought this warranted filing a juvenile petition alleging criminal charges against S.K. for violating Maryland’s prohibition against distributing child pornography, and the prohibition against distributing “obscene” material to a minor [Maryland Code, Criminal Law §11-207(a)(4) and §11-203(b)(1)(ii) respectively].

“… a person may not knowingly distribute any matter, visual representation, or performance . . . that depicts a minor engaged as a subject in . . . sexual conduct” (defined as “(1) human masturbation; (2) sexual intercourse; or (3) whether alone or with another individual or animal, any touching of or contact with: (i) the genitals, buttocks, or pubic areas of any individual; or (ii) breasts of a female individual”) (§11-207);

and

“… a person may not willfully or knowingly display or exhibit to a minor an item: . . . (i) principally made up of an obscene description or depiction of illicit sex; or (ii) that consists of an obscene picture of a nude or partially nude figure” (§11-203)

The juvenile court found S.K. to have been “involved” in criminal activity—that is, that she committed “a delinquent act which would be a crime if committed by an adult.” She was then “placed on electronic monitoring until June 9, 2017” and placed on “supervised probation” administered by the Department of Juvenile Services, which was subject to several terms and conditions such as:

• reporting to the Probation Officer;
• obtaining permission before changing her home address or leaving the State;
• permitting the Probation Officer to visit her home;
• submitting to weekly drug urinalysis;
• attending and completing anger management class;
• submitting to a substance abuse assessment and following any recommendations …

All this notwithstanding the fact that the conduct depicted in the video was (a) her own, (b) entirely consensual, and (c) completely legal in Maryland (for anyone 16 years old or older).

S.K. appealed her conviction, but the court upheld it. Relying entirely on the “plain language” of the statutes quoted above, it found that the statutory language does not exempt a minor who is a participant in the sex act being depicted from being a “‘person’ who is a distributor of child pornography [under 11-207] and a displayer of obscene matter [under 11-203].”  Putting it “more dramatically,” the court held that “a minor legally engaged in consensual sexual activity [can] be his or her own pornographer through the act of sexting.”

Here, S.K is prosecuted as a “child pornographer” for sexting and, because she is a minor, her actions fell directly within the scope of the statute. … As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.

It’s a dreadful result—dreadful for S.K., who now has a criminal record, and dreadful as a matter of principle. According to the court, over 18% of middle and high schoolers in Maryland report having sent or received sexually explicit material, and singling out S.K. for special punishment seems cruel to me.  Furthermore, as the lone dissenting judge (Hotten) pointed out, these statutes are clearly designed for the dual purpose of “addressing child pornography trafficking and preventing the sexual exploitation and abuse of minors”—neither of which is remotely implicated on these facts.

To be fair, the court itself clearly indicated that it felt hamstrung by the statutory language, and that the Maryland legislature should amend the relevant statutes to remove the prospect of criminal liability in circumstances like these:

“We do not find any ambiguity in this text and, therefore it is our duty to interpret the law as written and apply its plain meaning to the facts before us. In affirming this adjudication, however, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography…. Although the majority of states have passed legislation to amend their child pornography statute relative to sexting, Maryland is one of twenty-one states that have not passed any such legislation and thus permit teenagers to be charged under the child pornography statute….  In response to this case, legislation was introduced in the 2019 Legislative Session that was not passed but in light of these policy concerns, such legislation ought to be considered by the General Assembly in the future.”

And speaking of “plain meaning,” the finding by the juvenile court that S.K. was “involved in a delinquent act which would be a crime if it were committed by an adult” seems clearly wrong, just on semantic grounds:  if S.K. were an adult, a video of her own sexual act would not constitute “child pornography” (obviously—because it would depict adult conduct), and therefore she would not be criminally liable for distributing it to others.

The only good news for S.K. in all this is that she was not ordered to register as a sex offender with the Maryland Sex Offender Registry.  Although the criminal activity she was found to have engaged in ordinarily requires registration (and all of the attendant collateral disabilities regarding housing, movement, employment, etc. that attend classification as a “sex offender”), Maryland (thankfully) permits juvenile court judges to forego the requirement for juveniles. That would really have ruined her life, for no good reason at all.

Hopefully, the Maryland legislature will clear this up—if S.K. were the daughter of a legislator, my guess is they’d get right on this.

[h/t to Paul Levy for calling my attention to this case]

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An Alabama man who served 36 years of a life sentence for stealing approximately $50 from a bakery when he was 22 years old will be released from prison within the next few days. The case is a stark reminder of how little mercy is permitted under “three strikes” laws, which have seen people sentenced to die in prison for petty crimes.

In 1983, Alvin Kennard robbed Highlands Bakery of $50.75. The following year, because Kennard had three previous offenses, he was sentenced to life in prison without the possibility of parole under the state’s Habitual Felony Offender Act. (Though it is called a “three strikes” ordinance, the Alabama law actually kicks in on offense number 4.) The judge had no choice in the sentencing.

For those punished under the ordinance, Alabama’s statute now leaves room for parole. The change did not apply retroactively, though, so Kennard, now 58, was not automatically put before a review board. His attorney, Carla Crowder, tells ABC News that Jefferson County Bessemer Cutoff Circuit Judge David Carpenter did so on his own accord after becoming aware of the case and its disproportionate sentence.

“As incredible as this opportunity is for Mr. Kennard and as happy as we are for him, we know that there are hundreds of similarly situated incarcerated people in the state who don’t have attorneys, who don’t have a voice,” Crowder told the outlet, noting that 250 prisoners in the state met with a similar sentencing fate, but have not been granted mercy.

Different versions of “three strikes” laws exist in several states across the country, as well as federally, in what’s known as an 851 notice. The latter has seen about 800 inmates sentenced to life in prison without the possibility of parole if they have three prior drug offenses. After prosecutors filed such a notice against Chris Young in 2014, the Tennessee man, then 26, was sentenced to a life in federal prison for a drug-related crime.

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Despite attempts to blame recent reports of respiratory illnesses among vapers on legal e-cigarettes, investigators are increasingly inclined to think the real problem is hazardous chemicals in black-market THC and nicotine products. The Washington Post reports that “state and federal health authorities are focusing on the role of contaminants or counterfeit substances as a likely cause of vaping-related lung illnesses.” They “are narrowing the possible culprits to adulterants in vaping products purported to have THC…as well as adulterants in nicotine vaping products.”

That is consistent with the view of Scott Gottlieb, the former head of the Food and Drug Administration (FDA), who this week said “these tragedies point to illegal vapes and THC.” It is inconsistent with the take of anti-vaping scaremongers, who have seized on these cases as evidence against legal, commercially produced e-cigarettes that deliver nicotine.

“We strongly urge people to avoid vaping products and e-cigarettes,” the Wisconsin Department of Health Services said after the first outbreak was reported. During a press briefing last week, Brian King of the Centers for Disease Control and Prevention (CDC) warned that “e-cigarettes do not emit a harmless aerosol” and “can include a variety of potential[ly] harmful ingredients.” Although “we haven’t specifically linked any of those specific ingredients to the current cases,” he said, “we know that e-cigarette aerosol is not harmless.” Journalists were likewise quick to draw a connection between the recent hospitalizations and legal e-cigarettes.

In a joint statement issued today, the FDA and the CDC offer more-relevant advice: “Anyone who does use e-cigarette products should not buy these products off the street (e.g., e-cigarette products with THC or other cannabinoids) and should not modify e-cigarette products or add any substances to these products that are not intended by the manufacturer.” Possible culprits in the lung disease cases include contaminants in counterfeit cartridges, mislabeled solvents used to produce e-liquids, and synthetic cannabinoids or other substances advertised as THC. The FDA is analyzing 80 samples of substances vaped by the patients, and it is asking state officials to specify “the brand and types of e-cigarette products, whether any of them are products that would fall within the FDA’s regulatory authority, [and] where they were obtained.”

As of Tuesday, the FDA says, “215 possible cases have been reported from 25 states, and additional reports of pulmonary illness are under investigation.” The specific causes remain unclear:

While some cases in each of the states are similar and appear to be linked to e-cigarette product use, more information is needed to determine what is causing the respiratory illnesses. In many cases, patients reported a gradual start of symptoms, including breathing difficulty, shortness of breath, and/or chest pain before hospitalization. Some cases reported mild to moderate gastrointestinal illness including vomiting and diarrhea, or other symptoms such as fevers or fatigue. In many cases, patients have also acknowledged recent use of tetrahydrocannabinol (THC)-containing e-cigarette products while speaking to healthcare personnel, or in follow-up interviews by health department staff.

Even though cases appear similar, it is not clear if these cases have a common cause or if they are different diseases with similar presentations, which is why our ongoing investigation is critical.

As Boston University public health professor Michael Siegel notes, attributing these cases to “vaping” or “e-cigarettes” in general is unhelpful, misleading, and potentially dangerous, to the extent that it encourages vapers to start smoking again or deters current smokers from switching to nicotine products that are far less hazardous than conventional cigarettes. “It was immediately clear to me that these cases are not being caused by vaping products generally because these products have been on the market for years without any significant problems and because the reports are clustered in specific geographic areas,” Siegel writes. Furthermore, it was clear early on that many of the patients had used black-market products, including purported cannabis extracts.

As I noted last week, blaming these respiratory illnesses on “vaping” is like blaming food poisoning on eating. It is encouraging that federal health officials are getting more specific.

 

 

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