Salt Lake City Police Shot a Teen During a Mental Health Wellness Check

Salt Lake City shooting

The Salt Lake City Police Department is facing another use-of-force controversy after shooting a distressed 13-year-old with mental health issues. (SLCPD)

According to a statement from the SLCPD, the teen’s mother called 911 on September 4 to report that her son “was having a mental health issue and may be violent.” The teen’s mother provided additional information in the statement, saying that while her son did not like law enforcement, she believed police officers were the only ones she could call for help. When officers arrived, the teen’s mother indicated that she wanted her son to go to a hospital to receive assistance.

After receiving information from the teen’s mother, officers staged themselves around the home and knocked. Police body camera footage from the incident, available here, show the moments leading up to the shooting.

Officers pursued the teen, who fled from the house. After catching up with him, an officer shouts at the teen to “get on the ground.” The teen continues to walk down the sidewalk. A few moments later, another command to “get on the ground” is issued just before an officer shoots the teen.

The shot teen is lays down on the sidewalk and tells the officers, “I don’t feel good. Tell my mom I love her,” while the officers shout at the teen to show his hands.

The shooting begins after 17:55 (content warning)

The statement says that officers handcuffed the teen and rendered aid “until medical professionals arrived and took over.” The teen was later transported to a hospital.

The teen sustained injuries in his shoulder, ankles, and stomach.

The SLCPD statement also notes that all new officers receive a 40-hour course on mental health and policing.

“Topics include an overview of mental health conditions, medications, treatments, procedures and community resources,” the statement reads. “Site visits and interactions with those who experience mental health issues help build officers’ understanding and increase the likelihood of a positive outcome by utilizing available resources.”

According to the SLCPD’s use-of-force policy, officers are supposed to take into account a subject’s “mental state or capacity” prior to using force.

The shooting will be investigated internally and by a civilian review board, and the department will not be commenting on the shooting any further.

The SLCPD is also facing criticism for an officer’s decision to command a police dog to bite a man who was already on his knees and had his hands raised in the air. The department will now suspend its use of police dogs.

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Failed Efforts to Get RBG and Breyer during the Obama Administration

President Trump was able to appoint two Justices in his first two years. He inherited the first vacancy after Justice Scalia died. But he had to work the second vacancy.  His administration took specific steps to help Justice Kennedy off the Court, and open the seat for Justice Kavanaugh.

President Obama was also able to appoint two Justices in his first two years. In 2009, Justice Souter resigned. He never liked Washington, D.C. And in 2010, Justice Stevens resigned in light of concerns over his health. Between 2010 and 2014, the Democrats controlled the Senate. During this period, there were many public calls for Justice Ginsburg and Justice Breyer to step down.

Now, the New York Times reports that there were also private overtures to open up those two seats.

First, we learn that Senator Pat Leahy tried to use his personal relationship with Ginsburg to nudge her to retire. The timing of this meeting was unclear, but it happened “several years” before 2013.

Several senior White House staff members say they heard word that Senator Leahy had gingerly approached the subject with her several years before the Obama lunch in [2013].

He was then the chairman of the Senate Judiciary Committee, which oversees Supreme Court nominations; he also had a warm relationship with Justice Ginsburg, a bond forged over their shared enjoyment of opera and visits to the Kennedy Center. Asked through a spokesman for comment, Mr. Leahy did not respond.

But Leahy’s efforts failed:

One of the former Obama administration staff members who heard discussion of the roundabout outreach by Mr. Leahy was Rob Nabors, who served in a series of White House policy and legislative affairs positions under Mr. Obama from 2009 to 2014. But Mr. Nabors said he recalled hearing that “it wasn’t clear that the message was entirely transmitted effectively, or that it was received in the manner it was delivered.”

Come on. RBG understood the conversation. She knew what Leahy was trying to convey. She wasn’t interested.

Second, in 2013, President Obama asked his White House counsel to set up a meeting with RBG.

When Justice Ruth Bader Ginsburg joined President Barack Obama for lunch in his private dining room in July 2013, the White House sought to keep the event quiet — the meeting called for discretion.

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justice, according to two people briefed on the conversation.

Obama was too tactful to outright ask her to step down. Instead, he hinted that the Democrats may lose the Senate in 2014.

Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

Ginsburg was smart enough to read the polls. She didn’t need to be reminded about the politics.

But the effort did not work, just as an earlier attempt by Senator Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed. Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the court, according to those briefed.

Keep in mind how RBG fawned over Obama at the State of the Union addresses. It was a public spectacle. Nina Totenberg recounted how RBG attended Obama’s first State of the Union ten days after a cancer procedure.

She was still in considerable post-operative pain when she was released from the hospital, but less than 10 days later, she pulled herself together to attend President Obama’s first State of the Union speech

For her to rebuff Obama was serious. But we know that Ginsburg wanted to be replaced by a female President. Query: if Hillary Clinton was the winner of the 2008 election, would RBG have stepped down?

Fun fact: Ginsburg never attended a single State of the Union address by a Republican President. Not for W or for Trump. She always had scheduling conflicts.

Third, we learn that the Obama White House never discussed aloud trying to get Ginsburg to step down.

Robert Bauer, who served as Mr. Obama’s White House counsel for part of his first term, said he recalled no discussions then of having Mr. Obama try to nudge Justice Ginsburg to step aside. …

Neil Eggleston, who became White House counsel in April 2014, said that he did not remember anyone proposing that another attempt to ease Justice Ginsburg toward resignation would do any good.

“I think it is largely not done,” he said. “Suggesting that to a Supreme Court justice — she is as smart as anyone; she doesn’t need the president to tell her how old she is and what her timelines are.”

In hindsight, the Obama staffers regret not making the statement more explicit:

While Mr. Obama’s own talk with the justice was tactful, changing conditions should have made his implicit agenda clear, according to the two people briefed about the meeting, who spoke only on condition of anonymity given the sensitivity of the topic. Democrats were worried about the prospect of losing the Senate. And the president had invited no other justices to lunch.

Eventually Obama gave up:

But the failure of that conversation convinced the Obama team that it was pointless to try to talk to her of departure. The next summer, when another Supreme Court term closed without a retirement announcement from her, the administration did not try again.

Fourth, we learn that RBG conveyed her disapproval of those who urged her to resign:

She was clearly annoyed at any public suggestions that she step down. In 2014, Erwin Chemerinsky, now dean of the law school at the University of California at Berkeley, wrote articles, appearing in The Los Angeles Times and Politico, declaring that for the long-term good of progressive values, Justice Ginsburg should step aside to make way for a younger Obama appointee.

“It was certainly conveyed to me that she was not pleased with those who were suggesting that she retire,” Mr. Chemerinsky said.

In case you are curious, I have not heard a word from Chief Justice Roberts about my frequent calls for him to step down.

Fifth, Walter Dellinger tried to pull an Arthur Goldberg on the most famous Arthur Goldberg clerk:

Given his previous tenure as chief counsel to the Judiciary Committee, Justice Stephen Breyer might have been a more pragmatic target of overtures. Walter Dellinger, a former solicitor general, mentioned to the White House counsel’s office during the Obama administration a plan he conceived to motivate Justice Breyer, a known Francophile, to start a next chapter.

“My suggestion was that the president have Breyer to lunch and say to him, ‘I believe historians will someday say the three greatest American ambassadors to France were Benjamin Franklin, Thomas Jefferson and Stephen G. Breyer,'” recalled Mr. Dellinger, who recently joined Vice President Joseph R. Biden Jr.’s campaign team.

A friend joked that Breyer would have preferred to be the French ambassador to the United States. Think of all the foreign emoluments! And he wouldn’t even have to move.

Dellinger’s ploy did not work.

Although it is not clear how, word of Mr. Dellinger’s idea made its way to Justice Breyer.

Mr. Dellinger said that when he ran into Justice Breyer at a holiday party not long after Mr. Trump was elected, the justice pulled him aside. “So Walter,” he asked, “do you still want to ship me off to France?” Mr. Dellinger, who sensed the justice was ribbing him, responded, “Mr. Justice, I hear Paris isn’t what it used to be.”

Now, Dellinger has to admit that Breyer’s presence these last few years were important.

Mr. Dellinger added that he now thought Justice Breyer was correct to resist the idea, saying “he has made a tremendous contribution in the ensuing years.” Justice Breyer’s office declined to comment.

If Obama had swapped Breyer for Merrick Garland, would anyone have really noticed?

For what it’s worth, President Trump was able to open up a Fifth Circuit vacancy by offering Judge Prado the ambassadorship to Argentina.

Finally, the Times recounts how the Trump administration greased the skids for Justice Kennedy’s retirement:

President Trump’s first White House counsel, Donald McGahn II, the primary architect of the administration’s success in reshaping the judiciary, helped ease the way for Justice Anthony Kennedy’s retirement in 2018, which allowed Mr. Trump and a Republican-controlled Senate to lock down his seat for another generation.

Mr. McGahn sought to make the justice comfortable with the process by which a successor would be chosen, according to people briefed on their conversations, by seeking his advice on potential picks for lower-court vacancies and recommending that Mr. Trump nominate one of his former clerks, Neil Gorsuch, to fill an earlier vacancy. (Brett Kavanaugh, whom Mr. McGahn recommended to fill Justice Kennedy’s seat, was also one of his clerks.)

As much as I grouse about Justice Kavanaugh, his candidacy may have been the final push to get AMK to retire. Don McGahn can never get enough credit for opening up the Kennedy seat.

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USC Marshall Business School Dean E-Mail on the Greg Patton / “Neige” Controversy

Here’s the e-mail, just circulated this morning (I’ve confirmed this):

Dear Colleagues,

I have now attended department meetings at all seven of our academic units. Every meeting involved hard but important discussions, and I thank you for your willingness to freely and openly express your opinions and concerns.

A number of themes emerged that we will work on together in the months ahead. But one issue that stands in the way is the email I sent to our first-year full-time MBA students announcing that Professor Greg Patton was stepping aside from his GSBA 542 three-week course. I felt compelled to immediately address the genuine and serious concerns expressed by a number of student groups and individual students, including some enrolled in GSBA 542 who said they would stop attending the remaining two weeks of class. I will always respect and support students who come forward with concerns and will take them seriously, as I did in this case.

However, many of you have read that note as suggesting that I had prejudged the case. As I said when asked about this in the department meetings, this was not my intention. Nor was it my intent to cast aspersions on specific Mandarin words or on Mandarin generally. But I can see how reasonable people could draw a different conclusion in both cases from my email [see the original email below -EV]. I can only offer my sincere apologies that I left that impression, as I believed Professor Patton when he said he did not intend to do his students any harm and I have apologized to him as well.

The university’s Office for Equity, Equal Opportunity and Title IX (EEO-TIX) looked into this matter and concluded that the concerns expressed by students were sincere, but that Professor Patton’s actions did not violate the university’s policy. They have also communicated this to the professor and he allowed me to share their conclusion with you.

To be clear, Professor Patton was never suspended nor did his status at Marshall change. He is currently teaching in Marshall’s EMBA program and he will continue his regular teaching schedule next semester.

More generally, this incident has led many faculty to question whether they will be supported if they “make an honest mistake” in the classroom. Faculty are at the heart of all great business schools and every member of my leadership team will always do everything we can to support you and to ensure you thrive in both your research and teaching missions. We fully support our students and staff as well.

In order for our faculty and students to flourish in the classroom, it is essential that everyone feels free to express their views openly and to learn from each other from a perspective of mutual trust and respect. This can be challenging in today’s charged environment, but we must all strive to find the right balance.

During my very brief tenure as dean, I have seen you all rise admirably to the challenge of giving our students the best possible education in a remote environment. But working from home has made it impossible for me to get to know you, and for you to get to know me. It has created stresses that we have never before experienced. This has been a very tough episode for all of us. But I very much look forward to moving beyond it to work with you to elevate Marshall to new heights. I believe the future is very bright.

Sincerely,

Geoff Garrett

Dean

Here, for perspective, is the original email from the Dean:

Last Thursday in your GSBA-542 classes, Professor Greg Patton repeated several times a Chinese word that sounds very similar to a vile racial slur in English. Understandably, this caused great pain and upset among students, and for that I am deeply sorry. It is simply unacceptable for faculty to use words in class that can marginalize, hurt and harm the psychological safety of our students. We must and we will do better.

Professor Marion Philadelphia, Chair of the Department of Business Communications, will take over teaching the remainder of GSBA-542, beginning tomorrow, Tuesday August 25.

Over the coming weeks and months, I have no higher priority than to work with Vice Dean Sharoni Little, Vice Dean Suh-Pyng Ku and the other members of the Marshall leadership team to identify and redress bias, microaggressions, inequities and all forms of systemic racism associated with anyone’s identity throughout our school. We each must grow and learn always to engage respectfully with one another while fostering and exemplifying the knowledge and skills needed to lead and shape our diverse and global world—such as courage, empathy, compassion, advocacy, collaboration, and integrity.

I am deeply saddened by this disturbing episode that has caused such anguish and trauma. What happened cannot be undone. But please know that Sharoni, Suh-Pyng and I along with the entire Full-Time MBA Program team are here to support each of you. We welcome the opportunity to have conversations with any of you individually.

Sincerely,

Geoff Garrett

Dean

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Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’

elderly-inmate

Federal prosecutors unsuccessfully tried to argue this week that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just “one more way to perish in prison.”

U.S. District Judge Donald Graham disagreed and ordered Atilano Dominguez, who was 27 years into his life sentence, to be released from federal prison on Tuesday, over the objections of the Miami U.S. Attorney’s Office and the Bureau of Prisons (BOP). The U.S. government opposed his petition for compassionate release on the grounds that Dominguez, who’s mostly confined to a wheelchair due to advanced arthritis in both knees, was a recidivism risk and that his life sentence was imposed with the knowledge that he could die of any number of illnesses in prison.

Dominguez was one of thousands of federal inmates who applied for compassionate release—a policy allows elderly and terminally ill inmates to go home ahead of schedule—in response to the COVID-19 pandemic. In late March, Attorney General William Barr directed the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison. Despite the release of more than 7,000 thousand inmates, though, the rollout of Barr’s directive has been maddeningly inconsistent for inmates and families.

Dominguez was sentenced in 1994 to life in prison on two charges of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. His sentence was upgraded to a mandatory life sentence after prosecutors filed a draconian “three strikes” enhancement against him based on previous cocaine offenses. Graham wrote in his order releasing Dominguez that the judge at Dominguez’s original sentencing noted it was probably “too severe,” but there was nothing the judge could do because of the mandatory sentence.

Dominguez’ advanced age and long list of serious medical conditions—including diabetes, hypertension, and congestive heart failure—certainly fit the qualifying conditions for inmates at risk for COVID-19. But federal prosecutors said those were not “extraordinary and compelling reasons” to grant him relief, because he was expected to die in prison anyway.

“The government does not contest that the Defendant’s age and medical condition render him vulnerable to serious consequences if he were to contract the illness,” the Miami U.S. Attorney’s Office argued in a motion opposing Dominguez’s petition. “However, the Defendant’s sentence of life imprisonment always contemplated that the Defendant could perish in prison. The existence of one more way to perish in prison, specifically COVID-19 in addition to heart disease, cancer, stroke, aneurysms and myriad other ailments that afflict the aged, does not alter the appropriateness of the Defendant’s incarceration.”

Before 2018, that would have been the end of the line for Dominguez. There used to be no judicial review available for inmates applying for compassionate release, leaving inmates at the mercy of an arbitrary, inscrutable, and cruel prison bureaucracy. Justice Department records obtained by the criminal justice advocacy group FAMM in 2018 showed that at least 81 federal inmates had died since 2014 while waiting for the government to review their applications. 

However, after the passage of the FIRST STEP Act in 2018, federal inmates can now take their pleas to a judge if the BOP rejects their applications.

Graham ruled in Dominguez’s favor, finding that “there is no authority that persons sentenced to life imprisonment are somehow precluded from being granted compassionate release or are subject to a higher standard of proof.” He was also not convinced by the argument that an 80-year-old quadruple bypass survivor with arthritic knees was a significant safety risk to the community.

For criminal justice groups, cases like this boil down to basic human decency. “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole,” FAMM president Kevin Ring says.

Ring is not the only one. Earlier this year, a federal judge harshly rebuked the U.S. Attorney’s Office in San Francisco for pressuring defendants into plea deals that would waive their rights to compassionate release under the FIRST STEP Act, calling the practice “appalling cruel.”

Reason reported last year on the case of Steve Brittner, a former federal inmate who was diagnosed with metastatic brain cancer. Federal prosecutors opposed his compassionate release petition because they said his life expectancy exceeded his release date. In essence, Brittner wasn’t dying fast enough to qualify.

Then there’s Angela Beck, who suffered a year of potentially fatal medical neglect waiting for a breast cancer diagnosis and treatment. A federal judge granted Beck’s petition for compassionate release, finding that the neglect Beck suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody she would face “a substantial likelihood of substandard medical care for her life-threatening disease.”

So far, there have been 124 federal inmate deaths and two BOP staff deaths due to COVID-19. The first inmate to die was a drug offender.

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

Recently the Eleventh Circuit upheld Florida’s system of allowing former felons to get back their right to vote, even though it makes it very hard for former felons to actually do that. Critics have rightfully decried the ruling, but, unfortunately, it’s based on decades of Supreme Court precedent that many of those same critics have likely endorsed. Director of IJ’s Center for Judicial Engagement Anthony Sanders tells us how supporting the extreme version of the rational basis test in some cases but not others is a bargain with Leviathan that you just can’t win. Click here to read.

  • After Congress declined to appropriate funding to Build The Wall, the president moved some money around to build some of it anyway. House of Representatives: Can’t do that. D.C. Circuit: “It is a core structural protection of the Constitution—a wall, so to speak, between the branches of government that prevents encroachment of the House’s and Senate’s power of the purse.” Therefore, the House has standing to sue. The case should not have been dismissed.
  • Police planning a no-knock raid on a suspected drug dealer observe him leaving home around 9:00 p.m. Without checking whether the suspect had returned, police conduct the raid the next morning. Within seconds of breaching the front door, police shoot an unarmed houseguest in the stomach. Jury: The officer wasn’t negligent, but the city was. Trial court: The municipality didn’t have a “special relationship” with the plaintiff and therefore had no duty to avoid negligently getting him shot in the stomach. Second Circuit: Not so clear; we’ll let the New York Court of Appeals straighten this out.
  • Technology company rescinds job offers after background checks turn up past felony convictions. Two would-have-been employees sue, claiming the company’s policy has a disparate impact on African Americans.  Second Circuit:  Plaintiffs would have us assume that, because African Americans in general are more likely to have felony convictions, the same holds true for African American web developers.  That assumption is not plausible or even logical, so the complaint must be dismissed.
  • Grim reading: At the turn of the 20th century, German colonial and military authorities annihilated about 100,000 people in what is now Namibia, killing 80% of the Ovaherero and 50% of the Nama tribes and subjecting many more to slavery, concentration camps, and live medical experimentation. Second Circuit: These terrible wrongs can’t be addressed in U.S. courts.
  • After praising the Christchurch massacre online, white supremacist is interviewed by the FBI. He lies to agents about owning a gun, and he’s convicted of making a false statement. Among his conditions of supervised release: monitored internet use and no promoting violence online (or posting at all on violence-promoting websites). Second Circuit: Yes, he was convicted of lying to the feds about a gun, but, in the broader context, these conditions are appropriately related to the crime. The “violence” condition, however, is too vague.
  • Stay in your apartment, says Philadelphia 911 operator, and wait for the fire department to come rescue you. But then the 911 operator gives the fire department a wrong address and neglects to mention there’s a family still in the building. Rescue never comes. Third Circuit: Gov’t owes a duty of care when it itself creates a danger; but that rule does not apply here, where the operator merely failed to act. (Two judges separately confer, find this conclusion “troubling” not because it denies liability but because liability might conceivably be imposed in some other case.)
  • Allegation: Acting on the advice of his lawyer, Pennsylvania man stands up at a sheriff’s auction to inform bidders that he has an unrecorded interest in a property up for auction. An attorney for the sheriff’s office and an officer promptly place him in a chokehold, stun him, and drag him from the room for violating their unwritten “no comment” rule. A First Amendment violation? Third Circuit: The auction is a nonpublic forum, and the “no comment” rule is a reasonable way to move things along. Probably didn’t need to rough the guy up, though.
  • In which Judge Willett, concurring, again expresses himself of the view that “courts should attempt to provide greater judicial guidance” in qualified immunity cases by “explaining whether a right was in fact violated, not merely whether a rights violation was clearly established.” (Nota bene: A pending cert petition authored by, inter alios, the MacArthur Justice Center invites the U.S. Supreme Court to align itself with this view.)
  • Courtesy of the Fifth Circuit, here’s a reminder that it doesn’t matter if subject-matter jurisdiction wasn’t raised below. Thus, this challenge to state billboard regulations—removed to federal court by the gov’t, which raised subject-matter jurisdiction just 11 days before appellate argument—is headed back to state court.
  • After more than 1,300 cities and counties file lawsuits against opioid manufacturers, the cases are consolidated in the Northern District of Ohio. Attorneys representing 51 of these plaintiffs attempt to certify a “negotiation class” consisting of every city and county in the United States. The trial court certifies the class; objecting municipalities appeal. Sixth Circuit: However “innovative and effective” such a class might be in resolving mass tort claims, it’s not allowed under the Federal Rules. Dissent: The Federal Rules are about making it easier to resolve cases, and that’s how we should interpret the class certification rules.
  • After sustaining a blow from a baseball bat, would-be robber is arrested and held in Franklin County, Ky. jail. In the days that follow, he consistently vomits and suffers two seizures before being taken to hospital (where he suffers a third seizure). Sixth Circuit: The jail’s medical personnel were not deliberately indifferent to the man’s medical needs, so his constitutional claims were rightly dismissed. Partial dissent: For three of the nurses, a jury should decide whether they acted recklessly.
  • In 1971, a hippie is murdered in Nederland, Colo. The main suspect is the town’s marshal, but he’s not charged until confessing at a nursing home in 1997. Twenty years later, one of the hippie’s friends decides “to take care of some old business” by leaving a homemade bomb at the Nederland police station. (The bomb squad neutralizes it.) He’s sentenced to 27 years. Tenth Circuit: Resentence him. Among other things, shouldn’t have applied that terrorism enhancement.
  • Eleventh Circuit: It violates due process for judicial actors to profit from convictions and sentencing decisions and that also goes for quasi-judicial actors, like private probation companies. So a lawsuit against a probation company used by Gardendale, Ala. to impose conditions on probationers and extend their terms of probation, thus increasing the fees the company could extract from them, should not have been dismissed. (IJ filed an amicus brief urging this course of action.)
  • And in en banc news, the Fourth Circuit will not reconsider its decision that a school district violated Title IX and the Constitution when it prohibited a transgender male student from using male restrooms. Judge Niemeyer concurs in the denial on the grounds that the panel opinion is so wrong the Supreme Court should take the case directly. Judge Wynn concurs on the alternative ground that the panel opinion is so right that there’s nothing to rehear.

Priscilla Villarreal is a one-person news phenom in Laredo, Texas. Going by “Lagordiloca” (an endearing Spanish nickname meaning “the big crazy lady”), she’s drawn national attention for her bold newsgathering and unfiltered reporting. As a critic of local government and police, she’s also drawn their ire. So they began a campaign of retaliatory actions against her, culminating in her arrest and prosecution under an obscure and seldom used statute against “misuse of public information.” But Villarreal didn’t misuse anything. All she did was ask a confidential police source to corroborate facts about breaking news stories. That’s what Pulitzer Prize winners do every day. So Villarreal sued for retaliatory arrest. But a federal district court granted the officials qualified immunity, holding that they could plead ignorance of the First Amendment by pointing to their reliance on a statute—no matter how obviously unconstitutional or inapplicable. Now, IJ has filed an amicus brief in support of Villarreal, urging the Fifth Circuit to recognize that the district court’s holding is dangerous to a free society and that qualified immunity cannot shield officers who enforce blatantly unconstitutional laws or criminalize core First Amendment activity.

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Antebellum Is Empty Social Commentary Disguised as a Horror Movie

antebellum-janelle-monae-LARGE

For decades, horror movies have been vehicles for social commentary. In 1968, director George Romero’s genre-defining zombie film, Night of the Living Dead, served (perhaps inadvertently) as a parable about American racism; its ’70s sequel, Dawn of the Dead, tackled soulless consumerism and suburban ennui. By the time the series reached the George W. Bush era, with 2005’s Land of the Dead, Romero transformed the unending war between humans and zombies into a darkly comic riff on class division and wartime propaganda. His movies were tense, gory affairs about a fantastical otherworld in which the shuffling, flesh-eating undead regularly chased terrified civilians through homes and roads and shopping malls. They were also about the very particular, very normal real world that he, and his viewers, lived in. 

Romero was far from the only director to inject political consciousness into genre filmmaking. In the 1980s, John Carpenter directed a string of beloved genre films—The Thing, Escape From New York, They Live—that reflected his left-leaning sensibilities. More recently, horror has tackled issues like familial trauma and mental health (Ari Aster’s Hereditary) and domestic violence (Leigh Whannell’s The Invisible Man), shading and sharpening prosaic horrors with genre thrills and chills. And thanks in large part to Jordan Peele, whose Get Out and Us directly overlaid the experience of present-day American racism onto horror tropes, the genre has continued to engage with issues of race and discrimination. Part of what made these movies effective was the balance between genre thrills and social commentary, the way that each enabled and expanded the possibilities of the other. 

As big-budget Hollywood studio filmmaking has drifted away from socially and culturally engaged stories and concepts, except in the most superficial way, modestly budgeted horror movies have become one of the few places where these sorts of ideas are consistently explored in popular feature films. Indeed, it is now almost more surprising to see a horror picture that does not attempt some sort of social commentary; it is only a little bit of an overstatement to say that horror has become Hollywood’s op-ed page.

Which brings us to Antebellum. The debut feature from filmmakers Gerard Bush and Christopher Renz, which recently debuted on video-on-demand, Antebellum is social horror movie that offers neither scares nor ideas. Instead, it’s a one-note, one-twist concept in search of a story. 

The film begins with a William Faulkner quote—”The past is never dead. It’s not even past.”—then opens onto a plantation run by Confederate soldiers where slaves are beaten, raped, and forced to perform punishing work in total silence. The central character is a slave, played by Janelle Monáe, who is plotting some sort of escape. But there’s little in the way of narrative momentum or character development until the story eventually appears to shift gears. 

Once again, we meet Monáe, but this time she’s a successful contemporary author who goes on television to debate racial justice, gives TED Talk–style lectures to packed rooms, and casually works references to intersectionality into conversations. Obviously, there’s a connection between the slave played by Monáe on the plantation and the author played by Monáe in the present day, a spiritual or metaphorical link between plantation-era slavery and the black lives of today. 

To explain that link, however, would be to spoil the film’s big twist, which—spoiler alert—is exactly what I’m going to do. 

It turns out that the two Monáes are not connected by spirit or ancestry or anything so metaphorically indirect. Instead, they are literally the same person. The scenes of Monáe as a successful author are actually flashback, at the end of which she is kidnapped by a shadowy cabal led by a stalker played by Jena Malone, then brought to a present slave plantation that is operated for the pleasure of present-day racists, including, it turns out, a sitting U.S. senator. 

That’s it. That’s the movie. There’s barely a story. The characters are paper-thin. The plantation scenes are difficult to watch, and if anything seem designed to capitalize on the very abuses they nominally seek to critique. But they’re not tense or frightening, nor even particularly illustrative, as in something like 12 Years a Slave; the scenes of grotesque violence do little to advance either a narrative or the viewer’s understanding the world. Monáe’s author character, meanwhile, has little to do except deliver pat mini-monologues about racial justice.

At every turn, Antebellum is flat, unpleasant, and empty. The entire film is just a delivery system for a twist whose entire unsubtle point could have been made in the space of a tweet. It’s Faulkner’s quote with handclap emojis. 

Fair enough, you might say: Racism’s legacy is neither subtle nor thrilling, but an omnipresent and awful reality. It’s not made for entertainment. But a movie, especially a horror movie, isn’t reality, and it has to give viewers a reason to want to watch. The most successful genre filmmakers take reality and recast it, shaping it into something else—a story, an idea, a parable, a portrait of a particular person. Romero’s zombie films were visceral, white-knuckle affairs with sympathetic characters; Get Out escalates into a terrifying escape scenario; The Invisible Man draws viewers into a tense, high-stakes cycle of abuse and revenge. All of these films had thrills and ideas in balance, each working to prop up the other. Antebellum has neither enough ideas for an op-ed nor enough scares for a horror movie. It’s an empty twist in search of grander meaning. 

Directors Bush and Renz have described themselves as activist filmmakers dedicated to advancing social causes. But no amount of activism can save such shoddy, underdeveloped material—and from the looks of Antebellum, their activism has clouded their filmmaking judgment. There are no zombies to be found in their film, but politics seems to have eaten their brains. 

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Deregulate Pharmacists Now To Increase COVID-19 Vaccine Uptake

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Enabling tens of millions of Americans to get themselves speedily vaccinated against COVID-19 will be a huge logistics challenge. A new policy brief from the Mercatus Center, a think tank at George Mason University, argues that we could greatly accelerate the process by removing the complex state regulations that prevent pharmacists from administering vaccines.

There’s a good chance we’ll need those vaccines to end the pandemic. Herd immunity is the resistance you get to the spread of a contagious disease when a sufficiently high proportion of a population is immune to the illness; you can reach it through either mass infection or mass vaccination.

Epidemiologists generally estimate that the COVID-19 threshold for herd immunity is around 60 to 70 percent. Some researchers believe the number may be much lower than that, but even then we aren’t necessarily near the threshold: Recent testing of nearly 1 million American blood donors from June 15 to August 23 for COVID-19 antibodies finds that only 1.82 percent had them.

Blood donations aren’t a random sample of the population, of course. But in congressional testimony earlier this week, Centers for Disease Control and Prevention (CDC) chief Robert Redfield noted that his agency “is in the process of a very large, sequential study across the entire United States” to measure the presence of antibodies to the novel coronavirus; the stufy will be finalized and likely “published in the next week or so.” According to Redfield, “The preliminary results on the first round show that a majority of our nation—more than 90 percent of the population—remains susceptible” to the novel coronavirus.

So if mass infection isn’t about the get us there, tens of millions of American will need to get vaccinated to achieve herd immunity against the virus. In congressional testimony earlier this week, National Institute for Allergy and Infectious Disease Director Anthony Fauci said that he believes that the U.S. will have produced enough doses of a coronavirus vaccine to distribute to every American by April.

But who will give us those shots? While most states already allow pharmacists to administer many vaccines, regulators have unnecessarily imposed a variety of age restrictions on which patients pharmacists may vaccinate and individual patient prescription requirements.

The Mercatus Center report recommends that state regulators relax age restrictions on pharmacist-administered vaccinations; issue statewide standing orders authorizing pharmacists to administer vaccines without requiring a physician-written prescription for each patient; and revise regulations, as Oregon has, to permit pharmacists to administer all of the vaccines recommended by the CDC’s Advisory Committee on Immunization Practices. The latter recommendation “prevents lag in vaccine administration due to boards or legislatures having to approve individually named vaccines for pharmacist administration.”

Herd immunity is a big goal. Now is the time to unleash America’s 88,000 pharmacies and 314,000 pharmacists to reach it.

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Sixth Circuit Rejects Claim Covid-19 Requires Easing of Ballot Initiative Rules

Today the U.S. Court of Appeals for the Sixth Circuit rejected a challenge to Ohio’s laws governing the placement of initiatives on the ballot. The plaintiffs argued that the relevant ballot access provisions imposed an unconstitutional burden in light of the Covid-19 pandemic. The panel, consisting of Judges Sutton, McKeague and Nalbandian, disagreed.

The court’s per curiam opinion in Thompson v. Dewine summarizes the case:

The COVID-19 pandemic has upended life in many ways. In response to the unfolding public health crisis, states across the country imposed various orders in hopes of containing the virus. Ohio, for its part, asked its citizens to stay at home and restricted the size of gatherings.

This case, which we’ve seen before, involves the intersection of COVID-19, the state’s responses to that pandemic, and some of Ohio’s conditions that must be met before a ballot initiative can get on the ballot for Election Day. See Thompson v. DeWine, 959 F.3d 804, 806 (6th Cir.) (per curiam), mot. to vacate stay denied,—S. Ct. —-, No. 19A1054, 2020 WL 3456705 (2020).

Plaintiffs say that Ohio’s ballot initiative conditions are unconstitutional as applied during this pandemic and request that the federal courts relax them, at least for the time being. Plaintiffs’ challenge is a curious one. There is no question that Ohio’s ballot initiative conditions are, standing alone, constitutional, there is no question that Ohio is not responsible for COVID-19, and Plaintiffs are not challenging Ohio’s restrictions on public gatherings and the like, which Ohio imposed to address the pandemic—so we assume those are constitutional as well. And yet, Plaintiffs contend that when you put all of this together, in effect, two constitutional rights plus one outside catalyst make one constitutional wrong. The district court agreed and granted a preliminary injunction. We stayed that order because we disagreed. And now, because we still disagree, we reverse the district court’s grant of a preliminary injunction

From later in the opinion:

we note that the Federal Constitution gives states, not federal courts, “the ability to choose among many permissible options when designing elections.” Id. We don’t “lightly tamper” with that authority. Id. Instead, the power to adapt or modify state law to changing conditions—especially during a pandemic—rests with state officials and the citizens of the state.

So while federal courts can sometimes enjoin unconstitutional state laws, we can’t engage in “a plenary re-writing of the State’s ballot-access provisions.” Esshaki, 813 F. App’x at 172. Instead, “[t]he Constitution grants States broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ which power is matched by state control over the election process for state offices.” Clingman v. Beaver, 544 U.S. 581, 586 (2005) (citations omitted).

We don’t have the power to tell states how they should run their elections. If we find a state ballot-access requirement unconstitutional, we can enjoin its enforcement. See, e.g., Esshaki, 813 F. App’x at 172. But otherwise, “state and local authorities have primary responsibility for curing constitutional violations.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Esshaki, 813 F. App’x at 172 (holding that it “was not justified” for a district court to extend the deadline to file signed petitions and order the state to accept electronic signatures).

So when the district court here ordered Ohio to accept electronically signed and witnessed petitions and extended the deadline for submitting petitions, it overstepped its bounds. It effectively rewrote Ohio’s constitution and statutes and “intrude[d] into the proper sphere of the States.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., concurring); see Thompson, 959 F.3d at 812 (“[T]he district court exceeded its authority by rewriting Ohio law with its injunction.”). Federal courts don’t have this authority.

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Louisiana School Threatens 9-Year-Old Boy with Expulsion for Having BB Gun During Virtual Class

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Ka Mauri Harrison is a nine-year-old boy in Harvey, Louisiana. Earlier this month, he was taking a social studies test—during a virtual classroom session—when one of his younger siblings entered the room and knocked over an unloaded toy BB gun. Harrison picked up the fake weapon, which made it briefly visible on screen.

Readers can probably guess what happened next: The district, Jefferson Pariah Schools, threatened Harrison with expulsion for having a lookalike weapon in class—as if his home is now an extension of the school. The Washington Post reports that the expulsion was later reduced to a six-day suspension .

“This is an injustice. It’s a systemic failure,” Chelsea Cusimano, the family’s attorney, declared in a statement. “They’re applying on-campus rules to these children, even though they’re learning virtually in their own homes.”

Schools have doled out similarly harsh punishments to other students who inadvertently violated policies that don’t make any sense when applied to at-home instruction. Inflexibly taking a rules-are-rules approach to school discipline makes even less sense now than it did when kids were actually going to school. Dealing with Zoom-based learning is difficult enough; kids and parents shouldn’t have to worry about what might appear in the background. It’s an extra penalty on families that have more kids to deal with or less access to stress-reducing resources.

Note also the difficulty that Harrison’s teacher had when she wanted to talk to him about the toy gun. She waved at him to get his attention, but he had the computer on mute because he was taking a test. By the time he could unmute, the video feed cut out. These are the struggles and impracticalities that thousands of children all over the country are dealing with—even in districts where the COVID-19 infection rates are low and in-person instruction could probably resume safely.

Louisiana Attorney General Jeff Landry has taken an interest in Harrison’s case and the broader issue of “blatant government overreach by the school system.”

“I have begun investigating this matter and plan to take action in defense of this young man and his family and all families who could suffer the same invasion of their homes and constitutional rights,” Landry announced.

That’s good news. School districts need crystal-clear instructions from state authorities that they should not make life even more difficult for kids like Harrison.

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Fargo Goes Full Gangster in Season Four

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Fargo. FX. Sunday, September 27, 9 p.m.

Halfway through the plague-abbreviated fall broadcast TV rollout, it’s time for a break. Actually, there are two new NBC shows debuting this week. One is Connecting, a stab at a Friends for quarantine times. The other is a remake of the pillory-the-contestants quiz show The Weakest Link, with Jane Lynch of Glee replacing Brit Anne Robinson in the Ilsa-She-Wolf-of-the-Game-Show-SS role as hostess. But NBC didn’t make either of them available to critics in time for review, generally not a sign of intellectual heft, cutting-edge humor or even bare intelligibility, so watch at your own risk—the usual Reason warranty on lost or damaged brain cells is not in effect.

Happily, the cupboard is not bare. FX’s Fargo returns after an absence of three years, with no discernible diminution of bloodlust, contempt for its fellow man, or general weirdness.

In one fundamental way, Fargo—an anthology series with no returned characters or plot continuity, based on the 1996 Coen brothers film of the same name—is quite different from previous seasons. Usually the show kicks off a little story about ordinary people. Something happens, typically a crime, things go out of control, and we get to see how leeringly evil regular human beings can turn.

Perhaps series creator Noah Hawley thinks his point about our core immorality is made, because this edition of Fargo—set in Kansas City in 1950—makes no pretense of human decency. From the first frame, it’s a tale of ethnocentric gang warfare: the Jewish mafia against its Irish counterparts, the Irish against the Italians, and—finally, center stage—the Italians against the blacks.

The story plays out as cockeyed, multicultural version of The Godfather, with sidebars on immigration, assimilation and, inevitably, race. Black gang boss Loy Cannon, played by Chris Rock, owns a bank, is a deacon in his church and a loving father to his children. But he also fixes fights and runs numbers and prostitution rackets.

His Italian rivals, the Fadda brothers, are almost directly out of The Godfather. Josto (Jason Schwartzman, The French Dispatch), prematurely seated family chief after the accidental death of his father, is a slightly less flighty version of Fredo Corleone, uncertain and disposed to compromise rather than clashes. His brother Gaetano (Italian TV star Salvatore Esposito), only recently arrived from Sardinia, is an even more hotheaded version of Sonny Corleone, squirming with sociopathic impulses.

With Cannon wanting to expand his territory and the Faddas not interested in giving anything up, conflict seems likely. The bosses try to work things out like a couple of midwestem Franz Fanons. “I know you think being part of an American is standing on my neck,” Cannon tells the Italians. “But I’ve seen the window signs. ‘NO COLORED, NO ITALIANS.’ So we’re both in the gutter together, like it or not.”

But post-colonial theory is no match for mafioso rage. And the presence of some oddball interlopers doesn’t help.

The most problematic is a Mormon federal marshal (Timothy Olyphant) on the hunt for some escaped bank robbers, who dispenses breezy bits of racist 1950s folk wisdom with the same alacrity with which he ignores rules about search warrants and other law enforcement niceties. “I tracked a one-eyed Mexican all the way to the ocean once,” he boasts during a stakeout. “I caught him trying to paddle to China.”

Much as his career anecdotes enliven surveillance shifts, the pinwheel-eyed nurse Oraetta Mayflower (Jessie Buckley of HBO’s Chernobyl) goes him one better as she dispenses unsolicited handjobs to Italian mobsters spying on the black gang. The mobsters might be even further diverted if they knew she’s pulled off more hits than they have, dispatching her patients with poisonous injections and crimped oxygen hoses on fits of macabre whimsy.

Buckley’s daft performance is the star turn of a very talented cast. (Exception: Rock, who lacks the gravitas necessary to play a mafia boss, tries hard, but can’t rid himself of a little half-smirk that makes him look continuously on the verge of breaking into an old Saturday Night Live monologue.)

Evaluating the rest of the show, however, is more difficult, particularly its attempt to establish a moral footing for itself. (If, indeed, that’s supposed to be taken seriously; Fargo‘s ability to needle itself should never be underestimated.) I’m certain America has no shortage of racism, but somehow I’m not very moved by a lack of awareness of all the barriers to advancement to ethnic gangsterism. And in any event, Fargo’s body-count is a salute to an equal-opportunity America. Advises one character: “There’s a place for all of us on this earth. We just have to find it.” In Fargo, that’s almost always in a coffin.

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