Do Sealed Convictions Still Disqualify Candidates from Office?

From Pruitt v. Smith, decided last month by the Arkansas Supreme Court (in an opinion by Justice Shawn A. Womack):

[A]rticle 5, section 9 of the Arkansas Constitution, “Persons Convicted Ineligible,” provides:

(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.

(b) As used in this section, “infamous crime” means: … (4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process….

[David] Pruitt pled guilty to subsection (a)(19)(A), which states, “No person shall [v]ote, knowing himself or herself not entitled to vote.” … [T]he statute … requires a culpable mental state—”knowing.” Further, voting when not entitled is inherently dishonest, and when Pruitt pled guilty to the offense, he was required to admit having committed a deceitful act….

Pruitt had his misdemeanor conviction sealed pursuant to the Comprehensive Criminal Record Sealing Act. In Ark. Code Ann. § 16-90-1417, the Act details the effect of sealing a person’s criminal history, providing in pertinent part:

(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law

In Haile v. Johnston (Ark. 2016), … a registered voter … filed a petition for declaratory judgment and writ of mandamus alleging Josh Johnston was constitutionally ineligible to run for or hold the public office of Cleburne County Sheriff. Johnston had previously pled guilty to a violation of the Arkansas Hot Check Law; however, his misdemeanor conviction was subsequently sealed …. This court [concluded that] the plain language of Ark. Code Ann. § 16-90-1417 dictated as a matter of law that Johnston’s misdemeanor conviction never occurred once the record was sealed, and all of his privileges and rights were restored…..

Here, Pruitt pled guilty to section 7-1-103(a)(19)(A). Subsection (b)(2)(A) specifically provides that “[a]ny person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any department of this state.” In contrast, Johnston was convicted under the Arkansas Hot Check Law, which includes no such provision limiting the restoration of rights after a record has been sealed. Under the plain and unambiguous language of section 16-90-1417(a)(1), the General Assembly reserved the authority to limit the effect of sealing in certain circumstances. With the inclusion of subsection (b)(2)(A), the General Assembly deliberately chose to exclude from public office all persons found guilty of election-related misdemeanors, regardless of whether the record is later sealed. Accordingly, we must conclude Pruitt is ineligible to hold the public office of alderman….

I think this result is right, but I wonder whether this should be seen as a state constitutional mandate, and not just a matter for the legislature to decide by statute. Haile held it wasn’t a state constitutional mandate, citing Powers v. Bryant (1992), which in turn held:

Appellant argues that the mere “fact” of a prior conviction, regardless of whether the conviction has been expunged or voided, renders a citizen constitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford (1990). In the Tyler case, we discussed the legal effect of expunction under the Federal Youth Corrections Act, and relied on decisions of the Fifth and Sixth Circuits holding that expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, “the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been.”

While appellant attempts to distinguish Tyler by pointing out that the Tyler case dealt with the effect of expunction under a federal law, we find the distinction irrelevant for purposes of this case. Judge Lineberger’s order granting the writ of error coram nobis clearly stated that Doshier’s 1932 convictions were “null and void.” As Judge Lineberger’s order manifested an intent to set aside Doshier’s conviction as if it had never occurred, we find no constitutional violation in Doshier’s holding of public office.

Are you folks persuaded? Or would you say that, even if federal expungement law preempts state constitutional provisions disqualifying convicted criminals from state office, mere state statutes can’t do that—and a state court decision merely sealing a conviction can’t make things “as if [the conviction] had never occurred”?

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A Thought Experiment: What If The Government Deemed A Business “Essential” Based on Its Economic Impact

I have long argued that during the pandemic, “essential” services is a synonym for “important” services. Some governors think houses of worship are important/essential. Other governors think abortion services are important/essential. The right/left divide here is patent. (I spoke about this issue on the Lawfare podcast). But governors of all stripes agree that retail is essential. The argument goes, people need to buy stuff to survive, and people need to work in retail establishments to remain employed. Governors are never crass enough to come out and say that businesses are deemed “essential” because of their favorable economic impact. But what if they did? What if the government simply said, “We cannot shut down business X because too many people would lose their jobs; we’ll flatten the curve somewhere else.”

Well, the United Kingdom has stated this issue bluntly. Generally, the nation requires inbound travelers to quarantine after arrival. But not all travelers. Only unimportant people. The government has announced a series of exemptions for important people:

From 4am on Saturday 5 December, individuals undertaking specific business activity which would deliver a significant benefit to the UK economy – including activity that creates or preserves 50+ UK jobs – will no longer need to self-isolate when travelling or returning from non-exempt countries.

Individuals will only be exempt when undertaking the specific business activity and will only be able to meet with others as required by that specific activity. Further information will be available on gov.uk when these exemptions come into force.

Exemptions will also come into force at the same time for domestic and international performing arts professionals, TV production staff, journalists, and recently signed elite sportspersons, ensuring that industries which require specific, high talent individuals who rely on international connections can continue to complete their work.

PHE do not anticipate these changes will raise the risk of domestic transmission, due to the protocols being put in place around these exemptions, however all exemptions will remain under review.

I appreciate the candor. The country is willing to accept the risk of transmission from very, very important people. Elite athlete? Welcome aboard. Recreational tennis player? Stay in quarantine.

Would this measure be constitutional in the United States? I think so. Classifications based on economic status are (thankfully) quasi-suspect. And the government certainly has a rational basis to treat people differently based on their economic impact. Kelo reached this holding explicitly. Still, this sort of policy would be very unpopular in the U.S. It would make clear that “essential” workers is merely a synonym for “profitable” workers.

In time, the entire “essential” edifice needs to be dismantled once this pandemic subsidies. Governor should not be vested with such absolute authority to decide who and what is important based on arbitrary whim.

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Will the COVID-19 Vaccines Soon Crush the Pandemic?

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As calamitous as the COVID-19 pandemic is, humanity would have been in a much worse situation had it occurred even ten years earlier. The past decade of remarkable biotechnological progress enabled public health officials and researchers to identify the COVID-19 virus, sequence its genome, ramp up diagnostic testing, and then create and begin to deploy numerous vaccines in less than a year.

This week, the United Kingdom approved the Pfizer/BioNTech vaccine. British citizens will begin inoculations next week. The U.S. Food and Drug Administration (FDA) will meet on December 10 to consider an emergency use authorization for that vaccine, and will discuss authorizing the Moderna vaccine a week later. If all goes well, the campaign to vaccinate Americans will begin shortly thereafter. The two companies could supply enough doses to cover around 20 million Americans before the end of the year.

However, even if it was logistically possible to distribute such great quantities of doses, vaccine makers (including Johnson & Johnson and AstraZeneca, in addition to Pfizer/BioNTech and Moderna) do not yet have the capacity to inoculate everyone immediately. So earlier this week, the Centers for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices recommended prioritizing vaccination for the 21 million health care workers and the 3 million elderly residents in long-term care facilities. Vaccinations will then be offered to segments of the population at greater risk—essential workers, Americans older than 65 years, and those with comorbidities.

So when is the rollout of the COVID-19 vaccines likely to begin to shift the trajectory of the pandemic? Keeping in mind the problems associated with managing complex logistics and the flaws of epidemiological models, let’s take a look at the projections from the Institute for Health Metrics and Evaluation (IHME).

Even assuming a rapid rollout of the vaccines, the IHME projects that they will not really begin changing the current trajectory of daily COVID-19 deaths until around February. In the meantime, what does work is wearing facial coverings to prevent the spread of the virus.

“The vaccine has not come in time to do much about the winter wave,” said Christopher Murray, director of the IHME, in The Washington Post. “Vaccination is coming too late even if we do a really great job of scale-up. It’s coming too late to do much by March 1, or really by April 1.” Only at that point, he added, will the widespread distribution of vaccines begin to crush the virus.

Here’s to hoping that the IHME projections are too pessimistic about how much help vaccines will render throughout the coming winter. For now, social distancing, mask-wearing, and proper hygiene remain key to blunting the pandemic’s course for the next few months.

 

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De Facto Denials on the Shadow Docket: When the Circuit Justice Slow-Walks The Call For Response

Generally, the Circuit Justice plays a minimalist role. He can deny frivolous emergency applications without referral to the full Court–often without even calling for a response. For meritorious emergency applications, the Circuit Justice can call for a timely response, and then refer the matter to the full Court. But there is a third path for the Circuit Justice that is less obvious: de facto denial by delay.

The Court will not grant emergency relief without hearing from the other side. Sometimes, the Circuit Justice will enter an “administrative” stay that preserve the status quo will briefing concludes. But that stay will usually only last a few days.

Some emergency applications need relief by a certain date. For example, the state schedules an execution date and time. The Court must decide the pending application before the execution date and time. If the Court waits too long, the prisoner will be executed, and the application becomes moot. Recently, this frantic briefing schedule has created public schisms on the Court. Another example might concern an election. The Court may have to issue a ruling before an election is held so administrators know what rules to apply. Indeed, the so-called Purcell principle was used consistently this year to avoid last-minute changes to election rules.

This year, post-election litigation is facing a pressing deadline. December 8 is the so-called “safe harbor” date. Under the Electoral Count Act, elections settled by this date will be treated as presumptively valid by Congress. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court. For this appeal to have any chance of succeeding, the Court would have had to resolve the application before December 8. The Court could have easily ordered a 24-hour briefing schedule. Sucks for the parties, but the Court seldom considers the burden of tight deadlines. But Circuit Justice Alito ordered a response by December 9. Generally, six days is the standard reply time for an emergency application. And, apparently, Justice Alito did not think the case warranted faster consideration.

By slow-walking the response, Justice Alito effectively denied the application. Election Law professor Rick Hasen explained, “By setting the deadline for a response as December 9, this means that the Supreme Court won’t act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania.”

Another aspect of shadow docket litigation: de facto denial through by granting the full six days for a call-for-response.

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Like COVID-19 Vaccines? Thank Globalization!

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With the first federal approval for a COVID-19 vaccine potentially just days away, Vice President Mike Pence took a bit of a victory lap during a speech in Memphis on Thursday.

“Only in America,” Pence said, “could you see the kind of innovation that’s resulted in the development of a vaccine in record time.”

That is at least a less ostentatious framing than the one Pence’s boss has used. Last week, President Donald Trump told The Washington Post, “Don’t let Joe Biden take credit for the vaccinebecause the vaccines were me.” But the nationalist view of the vaccine breakthrough similarly ignores reality.

Yes, American technological ingenuity and medical know-how have been crucial, but the vaccines developed by Pfizer and Moderna are the results of a global effort. The scientific and medical knowledge used to develop the vaccines is not, thankfully, trapped within national borders. Perhaps even more importantly at this stage, the manufacturing and rapid distribution of those same vaccines will rely on global supply chains that some in the Trump administration would prefer to tear up.

There is no single nation—and certainly no single person—capable of reaching this point so quickly.

Indeed, the Trump administration’s much-self-ballyhooed “Operation Warp Speed,” the massive public-private partnership aimed at accelerating the production and distribution of a COVID-19 vaccine, was not launched until May. Pfizer didn’t strike its nearly $2 billion pre-purchase agreement with the federal government until July. But both vaccines were already under development months earlier.

That speedy development was made possible by globalization. Pfizer is a multinational company headquartered in Germany and the United States—but most of its vaccine production is done in Belgium, using supply chains that extend to Egypt, China, America, and elsewhere. The company is run by a Greek immigrant, Albert Bourla. BioNTech, Pfizer’s partner in the COVID-19 vaccine development project, is a German company founded and run by a Turkish immigrant, Ugur Sahin.

Moderna is an American-based company run by a French immigrant, Stéphane Bancel, and was founded by the child of Armenian parents living in Lebanon. Like Pfizer, it depends on global supply chains for vaccine production, raising capital, making sales, and doing all the other things a modern pharmaceutical company must do to be successful.

But the companies developing vaccines are really only part of this story. Once distribution begins—and in some places, it already has—humanity will be relying on a complex network of international shipping and logistics companies to get doses where they need to go.

These are not new—and they were certainly not created by government fiat. As The Wall Street Journal noted this week, they are in many cases the same channels used to deliver iPhones and PlayStations. Those networks weren’t created so they could someday be used to deliver lifesaving vaccines. They were created because the market demanded faster access to cheaper, better goods—and now they will be used to deliver lifesaving vaccines too.

McKesson Corporation, the drug wholesaler that’s been tapped by the federal government to handle vaccine distribution in America, will be able to do the job because it has spent years building and refining its operations to maximize profit. Global distribution of the Pfizer vaccine will be handled by companies including DHL, UPS, and Lufthansa—and the same is true for each of them. Imagine the disaster we’d be facing if national governments had to do all this instead, or if each of those companies was only allowed to operate on one side of national borders.

The vaccines are some of the greatest examples of the intangible benefits of globalization, says Scott Lincicome, a senior fellow at the libertarian Cato Institute and former trade attorney. While critics of globalization like to focus on things like cheap T-shirts and other consumer goods, he says, it is the very networks developed for the delivery of those goods that will now speed vaccines to every corner of the globe.

“At no point did some public official snap his or her fingers and order the creation of these global networks,” Lincicome tells Reason. “We take all this for granted because it developed naturally, invisibly over the course of decades. None of this dropped out of the sky in February.”

The COVID-19 vaccines are in some ways extreme examples, but they are not far from ordinary. All modern vaccines and many advanced medical treatments are the results of global supply chains and the sharing of knowledge that’s made possible by trade and immigration. The impulse to isolate America from those global networks—an impulse that reared its ugly head in many ways during the early stages of the COVID-19 pandemic—would not make America or the world any safer. It would leave humanity less capable of countering these major challenges.

In a way, however, Pence was right. It is American values—capitalism, chiefly—that made it possible for vaccines to be made and distributed so quickly around the world by multinational businesses.

We will have COVID-19 vaccines in spite of the nationalists, not because of them.

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Many Epidemiologists Want Social Distancing and Masks Forever—Even After the Vaccine

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The New York Times asked 700 epidemiologists to describe their COVID-19 habits, how their thinking has changed since the pandemic began, and when they think it will be safe for normal life to resume. Dismayingly, several answered that last question with a resounding never.

“I expect that wearing a mask will become part of my daily life, moving forward, even after a vaccine is deployed,” Amy Hobbs, a research associate at the Johns Hopkins Bloomberg School of Public Health, told The Times.

Marilyn Tseng, an assistant professor at California Polytechnic State University, said life would never revert to the way it was, though the preventative measures currently practiced—masks and social distancing—will feel “normal” in time. Similarly, Vasily Vlassov, a professor at HSE University in Moscow, said life was perfectly normal now because this is the new normal.

Others disagreed. Michael Webster-Clark of the University of North Carolina at Chapel Hill said he expected “further relaxation of most precautions by mid-to-late summer 2021” following widespread availability of the vaccine. Some epidemiologists said their own risk aversion would decrease after they were vaccinated, but many said they would remain just as cautious until “80 percent or more” of the entire population had received the vaccine.

On the whole, the epidemiologists were less wary of touching surfaces than they were at the start of the pandemic, and some thought young children could go back to school. But just 26 percent said they either had or would have allowed their children to return to the classroom, or even attend an outdoor play date with friends. Only 29 percent were willing to get a haircut, even though the most infamous case involving two hairstylists who had COVID-19 resulted in not a single infection among their 139 clients. A mere 11 percent were willing to ride the subway.

Epidemiologists are free to take whatever precautions they deem necessary in their own lives, of course—as are the rest of us. But for too long, their pessimistic dictates have provided cover for politicians and government employees to make people’s lives miserable. To take just the most obvious example, schools are still closed in many major cities, even as new scientific information has generally found that resuming in-person education would be perfectly fine. Teachers unions have echoed the choruses of the most alarmed public health experts, scrawling not until it’s safe on their school reopening protest signs.

One of the blessings of liberty is that everybody shouldn’t have to follow the same script. If a person has reasons to be extra cautious, or even just prefers the feeling of knowing that he is doing absolutely everything to reduce his own risk of catching the disease to as close to zero as possible, then he is free to live in accordance with that goal. Other people may decide their own circumstances don’t require the same level of zealotry, or that their extremely low chance of having a negative health outcome justifies a greater degree of flexibility. Others may say they are fine with certain precautions—masks, avoiding large events—but need to resume small in-person social gatherings for the sake of their mental and emotional well-being. Still others may take larger risks but test themselves frequently and quarantine aggressively before traveling or visiting the elderly. The circumstances on the ground matter tremendously; a person’s willingness to relax his social distancing habits should track with the rate of infection in the community, which will necessarily be different in different areas of the country.

But these choices need to devolve to individuals to the greatest extent possible, especially in the coming months, as the population becomes vaccinated and we move past the crisis point of the pandemic. The order of the day should be respecting people’s preferences. If a convenience store doesn’t want customers to enter unless they’ve been vaccinated, the store owner’s wishes should be respected just as if the matter were shoelessness or shirtlessness. If a restaurant decides it really needs full capacity dining in order to stay in business, the government shouldn’t deploy the police to stop them.

We all have to work it out for ourselves, and everyone who wishes to recapture the old normal is within their rights to dissent from the epidemiologists’ contentment with the way things are now.

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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.

In 2015, CBP agents seized Gerardo Serrano’s truck as he tried to cross the border into Mexico. Gerardo asked for a hearing before a judge, and then he waited. And waited. And waited. Two years later, he filed a class action on behalf of all U.S. citizens whose vehicles are seized at the border, claiming that CBP’s failure to provide for a prompt post-seizure hearing violates due process. The Second Circuit has previously required prompt post-seizure hearings, in an opinion by then-Judge Sotomayor, but the Fifth Circuit disagreed and ruled against Gerardo. Now, in a petition filed this week, IJ is asking the Supreme Court to resolve the split. Click here to learn more.

  • Federal law prohibits all felons—including one who made “a materially false statement on her tax returns”— from possessing guns. A Second Amendment problem? Third Circuit: No, because the Second Amendment only protects “virtuous citizens.” Dissent: Not so. The Second Amendment protects all but “dangerous” citizens. See, among other things, then-Judge Barrett’s dissent in a recent case from Seventh Circuit.
  • In which the Third Circuit issues an unpublished decision affirming that the district court did not abuse its discretion in denying a motion for leave to amend under Federal Rule of Civil Procedure 15.
  • District court: The conviction of a former Penn State president in state court (for his role in the decision not to report suspected child sex abuse) violated the Ex Post Facto and Due Process Clauses because—although the relevant conduct took place in 2001—the jury was instructed under statutory language that was enacted in 2007. Third Circuit: The Ex Post Facto Clause applies to retroactive legislation, but here the problem (if there is one) is with how the relevant legislation was applied by the courts. And the court decision wasn’t so indefensible that it violated due process. The conviction is reinstated.
  • Augusta County, Va. sheriff’s deputy spies a familiar face at a local eatery—a man he had previously arrested on drug charges—and asks him to step outside. Once there, he asks the man to empty his pockets and, finding nothing, pats him down, also finding nothing. Then a drug dog alerts on the man’s car, leading to a search that finds nothing. A Fourth Amendment violation? Fourth Circuit: Anyone who was asked to follow a police officer who had previously arrested them would feel perfectly free to walk away from the encounter.
  • How much does the past matter? The Fourth Circuit considers the question and concludes that—at least in the context of a constitutional challenge to a state voter ID requirement—it doesn’t matter nearly as much as the district court thought it did. Although North Carolina’s 2018 voter ID law was enacted by many of the same legislators who passed an earlier 2013 voter ID law that was struck down as a product of racially discriminatory intent, the district court still had to start with a presumption of constitutionality.
  • In July 1976, a Maryland couple planted a red maple in their yard. Forty-four years later, the Fourth Circuit explains that the “Japanese red maple tree features deeply lobed leaves that are red or reddish-purple in the spring and fall” and “is smaller than most other species of maple tree.” This particular tree is the “centerpiece” of the family’s yard. And more to the point, the tree does not interfere with the operation of a natural gas pipeline and doesn’t need to be cut down.
  • Texas makes it illegal for veterinarians to offer telemedicine services for any animal they haven’t physically examined. (Telemedicine for humans you haven’t examined is fine, even if they are noncommunicative, such as babies.) Fifth Circuit (2015): Obviously no constitutional problems here. Fifth Circuit (2020): Okay, so the Supreme Court said we were wrong about the First Amendment claim, so that one goes back down to the district court. Concurrence/Dissent: The Equal Protection claim should go back down, too. (This is an IJ case.)
  • In response to the increase in COVID-19 cases, Kentucky’s governor issues an executive order closing all public and private schools. Religious schools sue and secure a preliminary injunction. Sixth Circuit: Which was erroneous. The order treats religious and nonreligious schools identically, so the plaintiffs are unlikely to succeed on the merits.
  • Though gun collector has spent a decade negotiating for the return of 400-plus guns seized by the LAPD and is still actively trying to recover them, an officer goes to court behind the collector’s back and, with the court’s permission, has 300-plus guns (valued at hundreds of thousands of dollars) destroyed. Ninth Circuit: Permanently destroying someone’s property without providing any notice violates due process, and that is so obvious that the responsible officer doesn’t get qualified immunity. The collector can sue the officer, the LAPD, and the city too.
  • Does expecting to take non-cash, temporary government benefits after immigrating make one a “public charge?” Ninth Circuit: That wasn’t the understanding of either “Victorian Workhouses” or Congress. So we affirm the district courts, but cut back on the nationwide injunctions because a bunch of other courts are doing the same stuff. Dissent: Yeah, about those other courts, one of which has “Supreme” in the title . . . .
  • Woman slaps fellow passenger on flight from Minneapolis to Los Angeles, is convicted of assault in California. Ninth Circuit (panel): Wrong venue. She can only be prosecuted in the district over which the assault occurred. Ninth Circuit (en banc, over a dissent): Nonsense. Not only would that make it practically difficult to prosecute, the Framers couldn’t possibly have intended the Venue and Vicinage Clauses to include the airspace over a state or district (had they foreseen metal tubes carrying people while hurtling through the sky at 600 miles per hour). Venue is proper where the plane lands, and the woman’s conviction is affirmed.
  • A woman assists Seaside, Ore. law enforcement in their investigation of a brutal child rapist. As a result, immigration officials grant her a U-visa, a type of visa available for certain crime victims. She seeks to use her visa to obtain a derivative visa for her husband, whom she married while her application was pending. Yikes! A regulation says they needed to be married when she applied for her visa. Ninth Circuit (en banc): Statutory interpretation dictates that the regulation goes too far. Give her husband a visa. Dissent: The statute is ambiguous, and unreasonably restricting the agency’s ability to interpret it invites mischief.
  • ATF has a list of the origins of over 6.8 million firearms linked to criminal activity. Sounds juicy! A group files a FOIA request seeking to find out how many of those guns were owned by law enforcement (not the identities of those officers). ATF: No way; searching the database would create a new record, and we aren’t required to do that. Ninth Circuit: If running a search across existing databases creates a new record, much gov’t info will become forever inaccessible under FOIA, “render[ing] FOIA a nullity in the digital age.”
  • Drunk man shows up to his ex-wife’s house. When Tahlequah, Okla. cops arrive, he picks up a hammer, and appears to pull it back behind his head. The cops shoot and kill him. Excessive force? Tenth Circuit: A reasonable jury could find that the cops recklessly created a dangerous situation by backing the deceased into a garage, and a reasonable officer would’ve known from prior precedent that this conduct was unconstitutional. Reversed and remanded.
  • Georgia death-row inmate files lawsuit alleging that his planned execution by lethal injection violates the Eighth Amendment because his veins are in such bad shape that an IV is too risky. Requests execution by firing squad instead. Eleventh Circuit (over a dissent): Since firing squad isn’t permitted by Georgia law, this is really a challenge to his death-penalty conviction, so he should have filed a habeas petition. And, because he’s ineligible for a habeas petition, we dismiss.
  • And in en banc news, the Fourth Circuit will reconsider its decision that the Trump Administration’s new understanding of “public charge” (see Ninth Circuit, above) is a permissible interpretation of the Immigration and Nationality Act.
  • And in more en banc news, the Fifth Circuit will not reconsider its decision that an ordained Southern Baptist minister may sue the governing body of his church over his dismissal. Eight of 17 judges dissent from denial.
  • And in further en banc news, the Sixth Circuit will reconsider its decision that a Kentucky prosecutor’s striking four African-American veniremen did not violate Batson v. Kentucky (or, more precisely (since, of course, this is a habeas case (the complexity of which is best captured by multiple layers of nested parentheticals)) that the Kentucky Supreme Court’s holding to that effect was not an unreasonable application of clearly established Supreme Court precedent).
  • And in additional en banc news, the Eleventh Circuit will reconsider its decision holding that a Georgia deputy’s prolonged questioning during a traffic stop was an excusable Fourth Amendment violation. (The now-vacated panel decision itself had vacated an earlier panel decision to more fully explain why the panel majority saw fit to rule for the gov’t based on a theory the gov’t had neglected to raise at any point on appeal.)
  • And in subsequent en banc news, the Eleventh Circuit will not reconsider its decision that the Florida Department of Corrections did not violate the Eighth Amendment when it refused to allow a transgender inmate to socially transition by wearing female undergarments, makeup, and long hair, triggering some “spicy rhetoric” from the dissenting judges.

When Joe and Annalyse Victor bought a home in rural Eagle, Wisconsin, they purposefully selected a 10-acre property where Joe, a commercial driver, would be able to park his trucks outside (just as the previous owner had done). But town officials decided to start enforcing code violations more strictly, and, though Joe moved his trucks inside, the Victors found themselves facing $88k in fines, which had been racking up daily without any notice from the town. Indeed, town officials routinely impose outrageous fines for insignificant offenses, often targeting residents who criticize the town board. To make matters worse, the entire system is tainted by a profit motive for the private law firm contracted to handle code enforcement. This week, the Victors’ joined with IJ to put a stop to the town’s abusive fines and fees enforcement. Click here to read more.

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Gavin Newsom’s New Stay-at-Home Order a ‘Deathblow’ to California’s Small Businesses

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Most of California will be going back into March-style lockdowns following the issuance of a new public health order from Gov. Gavin Newsom (D) that closes large swaths of the economy in regions hardest hit by COVID-19 and places tougher restrictions on businesses allowed to remain open.

The goal of the governor’s new stay-at-home order—which applies to any of the five newly demarcated regions of the state where hospitals’ intensive care unit (ICU) capacity is below 15 percent—is to stem the rise in new cases, and prevent the state’s health care system from being overwhelmed.

But critics say Newsom’s order is full of arbitrary restrictions that will damage small business owners while doing little to stem the spread of the pandemic.

“We are at a tipping point in our fight against the virus and we need to take decisive action now to prevent California’s hospital system from being overwhelmed in the coming weeks,” said Newsom in a press release. “By invoking a Stay at Home Order for regions where ICU capacity falls below 15 percent, we can flatten the curve as we’ve done before and reduce stress on our health care system.”

Under the governor’s order, a raft of new restrictions automatically snaps into place once a region falls below that 15 percent ICU capacity threshold.

That includes the total closure of personal service businesses like nail salons and barber shops, as well as bars, museums, and movie theaters. Restaurants must also cease on-site dining (indoor and outdoor) and switch over to takeout and delivery only. Retailers can be open only at 20 percent capacity. Churches are limited to outdoor service only. Hotels are closed to tourists.

This new order is even more restrictive than the four-tiered, county-by-county reopening framework that Newsom had previously imposed. Under that system, even the most restrictive tier allowed for open nail salons, outdoor dining, and retail to operate at 25 percent capacity.

In a Thursday press conference, Newsom said that he expects four of the state’s five regions—Southern California, Northern California, the San Joaquin Valley, and Greater Sacramento—will all have to adopt these restrictions within about a week. The Bay Area will get there in late December, he said.

Once imposed, the restrictions found in the stay-at-home order will remain in place for at least three weeks. They’ll be extended so long as spare ICU capacity in a region is projected to be below 15 percent.

The reaction from business groups to Newsom’s order has been mixed.

“It’s better than being closed,” says Rachel Michelin, president of the California Retailers Association, of the new 20 percent capacity limit on retail businesses. The fear, she says, was that retailers who’d already had to close down once during the pandemic would have to shut their doors again during the busy holiday shopping season.

“Obviously we’d love to have a higher capacity limit but we’re grateful that our doors, particularly for our smaller retailers in California, can remain open,” Michelin tells Reason.

Other business advocates are a little gloomier.

“This will be a devastating deathblow to already fragile, uncertain, and terrified small business owners,” says John Kabateck, California director for the National Federation of Independent Business (NFIB), citing a survey of NFIB members who report that if economic conditions don’t improve by early 2021, a full 20 percent of them will close permanently.

As of November 16, the number of small businesses open in California had declined by 31 percent from January. That’s an improvement from April when nearly half of all small businesses in the state were closed. It’s nevertheless worse than the 29 percent of small businesses that are closed nationwide.

“A 20 percent rule has a much different effect on small family business than that of a big-box corporate retailer,” says Kabateck. “Removing 80 percent of a small retailer’s selling space is as good as shutting down the small retailer…We want to see the science saying that retail commerce is the cause of the COVID surge.”

Kabateck does credit Newsom for announcing several measures to assist smaller companies earlier this week, including $500 million in grants for distressed businesses and a three-month extension of the deadline for paying sales taxes.

A better solution would be a full reopening of small retailers coupled with social distancing guidelines, he says.

In addition to condemnation from business groups, Newsom’s latest stay-at-home order is sparking resistance from local officials and state legislators.

Los Angeles County Sheriff Alex Villanueva has told reporters that his deputies won’t be enforcing the governor’s new order, and will instead stick to policing “super spreader” events.

The sheriffs in San Bernardino, Riverside, and Orange counties have made similar comments.

“We’ve had the worst, most severe business restrictions. We had among the worst, most severe school closures. Yet we’re still at a point where the governor says the situation is so dire, we need to take these radical measures,” says Assembly Member Kevin Kiley (R–Rocklin). “Maybe it’s time to rethink our approach.”

When a new session of the California Legislature begins on Monday, Kiley says he will be introducing a series of bills aimed at reopening the state and paring back the governor’s emergency powers.

That will include one bill reopening schools in the state, and another one preventing state agencies from revoking licenses for businesses that violated pandemic restrictions unless that agency can prove a business was responsible for COVID-19 transmission.

Ultimately, Kiley says, legislators need to take a more proactive role in determining what kinds of pandemic-related restrictions should be adopted, rather than let the governor craft regulations unilaterally.

“I want to see the legislature start to actually vote on these policies. We should have a vote on whether having a lockdown or stay-at-home order is a good idea,” he tells Reason. “The people of California deserve to have a representative process when it comes to these issues of such profound importance to their lives.”

Business owners working with the libertarian Pacific Legal Foundation filed a lawsuit back in October challenging Newsom’s last round of business restrictions on the grounds that he was usurping the state legislature’s authority.

So far, businesses have mostly taken Newsom’s various pandemic regulations on the chin. The more restrictive these regulations become, however, the less patience they’ll likely have for the governor’s central planning schemes.

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The Wilds Updates Lord of the Flies for Gen Z

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The Wilds. Available December 11 on Amazon Prime Video

It’s December, time for final exams in our weekly Television Appreciation class. (And yes, I’m aware that some of you refer to it as Television DisAppreciation. Just keep it behind my back, please.) First question, multiple choice: Here’s the plot—an airliner veers off course in a storm, then crashes just off a craggy desert island, killing the entire crew. The surviving passengers, the moment they crawl up onto the beach, launch into 24/7 bitching, quarreling and howling “Fuck my life!” at the moon. Oh, and somebody is secretly watching. Name the show.

  1. The film version of Lord Of The Flies, William Goldman‘s book 1954 novel in which a plane crash on a desert island reveals the inner savagery of English schoolboys.
  2. A rerelease of ABC’s 2004-2010 Lost, in which a plane crash on a desert island spent 121 IQ-sapping episodes revealing how time travel and alternate universes are the most feeble narrative devices in the history of spoken human language.
  3. The lost (heh-heh) episodes of ABC’s 1969-1970 shuck-and-jive bid for the lucrative eyeballs of the emerging youth culture The New People, a show in which a plane carrying a bunch of college kids crashes on a desert island and reveals absolutely nothing at all, since no one ever watched a single episode because its weird 45-minute format made it impossible to remember when to tune in. Bonus points if you knew that Kenny Rogers and the First Edition sang the theme song, although you’re lying, because—I cannot stress this strongly enough—no human eyes ever saw a single frameof The New People. I once asked Damon Lindelof, one of Lost‘s creators, if he had been inspired by The New People. “What new people?” he replied.
  4. None of the above. That plot description comes from Amazon Prime Video’s new drama, The Wilds, which boldly redefines the expression “rip-off” but does it in a fairly entertaining way.

The nine survivors of The Wilds plane crash differ from their predecessors of the past 70 decades in that they’re all teenaged girls with highly evolved Gen Z senses of grievance and self-importance. One of them even furiously objects to the use of the word “trauma” by the men who rescued her from the specter of almost inevitable death by starvation on the island. “What was so fucking great about the lives we left behind?” she demands. The Stalinist barbed wire of 11 p.m. curfews and being cut from the national diving team has left deep scars.

By the way, the disclosure that the girls were rescued wasn’t a spoiler. That’s revealed in the very first shot of the show, which is wrapped in a clever framing story: The girls, back in civilization, are being interviewed about what happened. “This is just a conversation, that’s all,” cheerfully insists one of interviewers. But his colleague introduces himself as “Agent Brown,” a title that almost never means anything good.

The interviews are also peculiar, focusing as much on the girls’ home lives as what happened during the crash or on the island afterward. Thus we learn that they were on a charter flight to an upscale girls’ summer camp in Hawaii (no, none of them are named Ginger or Mary Ann) to learn leadership and aromatherapy, not necessarily in that order. Their personality quirks seem way more than quirky.

One is a malcontent jock who got kicked off her basketball team for peeing on a rival player; one a bulimic who stuffed her face with chocolate cake as the plane spiraled to its doom. One, white, gets triggered by somebody’s innocent use of the word “pow-wow”; another, American Indian, doesn’t care. (She also seems unfazed when asked by another girl to say something “in Native American.”)

Inevitably, everybody’s got a secret, ranging from a Texas beauty-pageant queen hiding false teeth to a withdrawn 17-year-old loner who’s secretly the mistress of a best-selling author a couple of decades her senior. Drug dealers, angry closeted lesbians, and a flighty rich girl who’s in trouble for texting out her dad’s dick pics round out the hidden chapters, which don’t stay that hidden very long in the emotional hothouse of survivorship. “This is why I don’t get tight with girls,” declares one “The drama, the jealousies, the pretty revenge schemes.”

The occasional crack like that makes me wonder if series creator and executive producer Sarah Streicher (Daredevil) might be slyly mocking her characters, though most the time she seems to be offering them up at face value. Amazon Prime is promoting the series as “part survival drama, part dystopian slumber party,” which is not far off the mark. And like slumber parties, The Wilds bounces around from silly to interesting and back. It’s helped by some very good performances, particularly that of Sarah Pidgeon (Gotham) as Leah, the kid who embraces literature literally. I was also heartened by a few scenes in which the Gen Zs don’t seem to come from a galaxy quite so far, far away. Who amongst us hasn’t stood in a cave and shouted, just to hear “Butthole!” echo off the walls?

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For the First Time Ever, the House Votes To Repeal the Federal Ban on Marijuana

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Today, for the first time ever, the House of Representatives voted to repeal the federal ban on marijuana, which was first imposed in the guise of a revenue measure in 1937. The vote was 228 to 164, with five Republicans—including Matt Gaetz of Florida, who cosponsored the bill—joining 222 Democrats and Rep. Justin Amash (L–Mich.) in supporting the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would remove cannabis from the Controlled Substances Act and eliminate federal criminal penalties for cultivation, distribution, and possession.

The MORE Act, which was introduced by House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.), is unlikely to make much headway in the Republican-controlled Senate, where Majority Leader Mitch McConnell (R–Ky.) has supported industrial hemp but opposed legalization of psychoactive cannabis. Today’s vote is nevertheless a milestone in the fight against marijuana prohibition, and the House’s endorsement of federal legalization may nudge President-elect Joe Biden to support less sweeping reforms that nevertheless go further than anything he has advocated so far. Vice President-elect Kamala Harris, who sponsored the Senate version of the MORE Act, could have a positive influence in that respect.

In addition to removing marijuana from the CSA’s schedules of controlled substances, the MORE Act would require automatic expungement of federal marijuana convictions. Currently there is no expungement process at all for federal crimes, and state expungement typically requires petitions by individual offenders. The bill would require judges to vacate the sentences of people currently serving time for federal marijuana offenses when they request a hearing. The bill also would prohibit the denial of federal public benefits because of convictions involving cannabis consumption and eliminate immigration disabilities based on marijuana-related conduct.

Less promisingly, the bill would impose a 5 percent federal tax on cannabis products, rising to 6 percent after two years, 7 percent after three years, and 8 percent after four years. The revenue would be assigned to drug treatment, “services for individuals adversely impacted by the War on Drugs,” loans for marijuana businesses owned by “socially and economically disadvantaged individuals,” and grants aimed at reducing “barriers to cannabis licensing and employment for individuals adversely impacted by the War on Drugs.” Gaetz and Amash proposed an unsuccessful amendment that would have eliminated those provisions.

Thirty-five states and the District of Columbia have legalized marijuana for medical use; 15 states and D.C. have taken the further step of legalizing recreational use. The latter jurisdictions account for roughly a third of the U.S. population and now include two deep-red states, Montana and South Dakota. According to the latest Gallup poll, 68 percent of Americans, including 83 percent of Democrats and nearly half of Republicans, favor legalization. Yet as Rep. Earl Blumenauer (D–Ore.), co-chair of the Congressional Cannabis Caucus, notes, marijuana “remains criminalized at the federal level, destroying hundreds of thousands of lives and wasting billions of dollars on the selective enforcement of an outdated and harmful system.”

The MORE Act would resolve the conflict between state and federal marijuana laws, which casts a dark shadow over the burgeoning cannabis industry. State-licensed marijuana businesses engage in federal felonies every day, which exposes them to the ongoing risk of prosecution and asset forfeiture, mitigated only by the Justice Department’s enforcement discretion and an annual congressional spending rider that protects medical marijuana providers. That legal peril makes basic business functions such as banking and paying taxes needlessly risky, difficult, costly, and complicated.

During his confirmation hearing last year, Attorney General William Barr rightly described this situation as “untenable.” Barr, an old-fashioned drug warrior, made it clear that he is not a fan of legalization. “We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it’s a mistake to back off from marijuana,” he said, or “if we want a federal approach, if we want states to have their own laws, let’s get there, and let’s get there the right way.” In response to a question from Sen. Thom Tillis (R–N.C.), Barr clarified that he meant Congress should change federal law if it wants the states free to set their own marijuana policies.

Descheduling marijuana, as the MORE Act would do, is the most straightforward way to accomplish that. It is consistent with the federalism typically espoused by Republican members of Congress, with Biden’s support of medical marijuana, and with his promise to “leave decisions regarding legalization for recreational use up to the states.” Yet Biden, a supposedly reformed drug warrior, continues to support federal prohibition, unlike most of the candidates he beat for the Democratic presidential nomination, including Harris. He favors only minor marijuana reforms that would not address the contradiction between state laws that treat marijuana suppliers as legitimate businesses and federal laws that treat them as criminal enterprises.

“I have been waiting for this historic moment for a long time,” Blumenauer said. “It is happening today because it has been demanded by the voters, by facts, and by the momentum behind this issue. This is an opportunity to strike a blow against the failed war on drugs, [which] has literally destroyed hundreds of thousands of young Black lives.”

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