Tag: in-the-news

From today’s decision by Judge John M. Younge in Hepp v. Facebook, Inc. (E.D. Pa.), which I think is likely correct (and which follows Ninth Circuit law but rejects the contrary view from two federal district courts in New Hampshire and New York):

Plaintiff is a newscaster [and co-anchor] who has worked for the Philadelphia-based Fox 29 news team since November 2010…. Plaintiff alleges that “[a]pproximately two years ago, [she] discovered through her co- workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites.” …:

• “[Her] photo was featured in a Facebook advertisement soliciting users to ‘meet and chat with single women.'”

• “[Her] photo was featured on Imgur under the heading ‘milf,’ which is a derogatory and degrading slang acronym that refers to a sexually attractive woman with young children.”

• “[Her] photo was featured on Reddit titled ‘Amazing’ in the subgroup r/obsf (‘older but still $#^@able’) and posted by a user known as ‘pepsi_next.’ There is a hyperlink for the photograph which links to the Imgur site.” …

[Title 47 U.S.C. § 230] states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and expressly preempts any state law to the contrary. In other words, internet service providers are not liable for third-party content. Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir. 2003). Under the statute there are, however, certain causes of action that are specifically not barred by § 230(c), including “any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2).

“Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F. 3d at 330. In fact, many courts have observed that § 230 immunity should be broadly construed so as to implement Congress’s policy choice….

[1.] Plaintiff seeks to hold Defendants liable for information provided by another information content provider…. Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized Plaintiff’s image). Rather, it is reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached thereto, that Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.

[2.] Plaintiff’s claims seek to treat each Defendant as a “publisher or speaker” of the content posted by third parties. “The Third Circuit has held the CDA immunizes traditional publisher conduct, such as ‘deciding whether to publish, withdraw, or alter content.'” For the Defendants here, such decisions “involve deciding whether to provide access to third-party content or whether to delete the content from [their] archiv[e] or cache.” …

[3.] With respect to the CDA’s exclusion for “any law pertaining to intellectual property[,]” the Court recognizes there that there is a split of authority over the scope of this exclusion. Specifically, there is disagreement between the Ninth Circuit and some district courts over whether the CDA preempts state law intellectual property claims. Compare, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) (“We have observed before that because Congress did not define the term ‘intellectual property law,’ it should be construed narrowly to advance the CDA’s express policy of providing broad immunity.”); with Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did not preempt plaintiff’s right of publicity claim); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (“Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims.”). {Moreover, the Court’s research has yielded no case law from any other appellate courts that has clearly resolved whether the CDA preempts right of publicity claims.} …

[This Court] finds that the reasoning of the Ninth Circuit in Perfect 10 is more consistent with the statutory text and purpose of § 230(c)…. [T]he Ninth Circuit … held that [a] defendant was entitled to § 230 immunity against plaintiff’s right of publicity claim, stating that the term ‘intellectual property’ is not defined in the statute, and that “[s]tates have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few.” The court noted that “[b]ecause such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.”

The Ninth Circuit further reasoned that “[a]s a practical matter, inclusion of rights protected by state law within the ‘intellectual property’ exemption would fatally undermine the broad grant of immunity provided by the CDA.”  … This Court is persuaded by the reasoning in Perfect 10….

“While the scope of federal intellectual property law is relatively well-established, state laws protecting ‘intellectual property,’ however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various tate-law regimes.” …

The Court added this in a footnote:

The Court recognizes that on May 28, 2020, President Donald J. Trump issued an Executive Order relating to Section 230(c) …, which appears to be directed at preventing censorship by online platforms such as the moving Defendants in this case. The Policy section of the Executive Order states, in part: “In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic…. Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.” … Having reviewed the Executive Order and the context in which it was issued, the Court finds that it does not alter the Court’s analysis of the CDA immunity issue in this case.

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The property damage, looting, and fires that accompanied many of the protests over police abuse after the murder of George Floyd by Minneapolis police officers can create a dizzying sense of a society that is inescapably doomed. However, even worse waves of destruction have hit America before, for the same or similar reasons.

The police killing in 2014 of Michael Brown in Ferguson, Missouri, led to much urban unrest and police clashes, but the largest-scale directly analogous urban rioting came in the aftermath of the 1992 acquittal of Los Angeles police for brutally beating Rodney King after pulling him over for a driving infraction.

Like this year, the public release of a video of the police committing their crime precipitated the public rage. Those riots resulted in 50 deaths, 2,000 injuries, nearly 12,000 arrests, and 1,000 damaged buildings amounting to a billion dollars in property damage. But it also lead, over time, to reforms of the Los Angeles Police Department that made it a marginally better institution. As The Wall Street Journal reports, “Shootings by LAPD officers fell to a 30-year low last year, with officers firing on 26 suspects, compared with 115 in 1990.”

The Rodney King beating led to spillover riots in a handful of other cities, but the riots following the assassination of Martin Luther King, Jr., in April 1968 are the most apt analogy to what’s happened after the murder of George Floyd, in terms of breadth and intensity of unrest.

The nation’s capital was hard hit, with 8,000 arrests, 13 dead, over a thousand injured, hundreds of stores looted, and over a thousand fires. National Guardsmen and even members of the 82nd Airborne Division, numbering over 12,000, swarmed the city for over a week. Most analysts assume the District’s 15 percent loss of population over the 1970s can be largely attributed to the riots and their aftermath.

The unrest likely caused as much as $200 million (in contemporary dollars) in direct damage. As a result, insurance became difficult and expensive in the city for many years thereafter. While some might assume that shuttered businesses would return when the rioting stopped, it actually took decades for that to fully happen.

In 1968, Baltimore saw its streets filled with over 6,000 enforcers, from city cops to state troopers to, mostly, the National Guard. Over 250 fire alarms were reported and by the time the days of unrest were over, more than 700 people had been injured, six killed, and 5,500 people arrested; 1,050 businesses were burned, vandalized, or looted, at a cost of $79 million in damages (in current dollars). Housing values and population plunged for years afterward.

Chicago was another of the most damaged cities, with over 2,000 arrests, 48 citizens shot by police, and 11 deaths. National Guard and Army forces filled the city, where over 100 fires were set, telephone and power lines were disabled, and the city’s notoriously tough then-Mayor Richard Daley shut down streets to cars and ordered gun and ammo sales halted.

Pittsburgh also had the National Guard called in to deal with over 500 fires and over 100 businesses looted and nearly 1,000 arrests. Over the course of the post-MLK assassination riots, 125 cities saw some rioting, Army soldiers, Marines, and members of the National Guard took over multiple cities, dozens of people died, over 21,000 people were arrested, and many hundreds of millions of dollars in property damage were inflicted. Not only that, but the groundwork for the insane level of police militarization that we suffer today were laid via the Law Enforcement Assistance Administration.

The negative effects of riots, looting, and widescale vandalism echoed for decades. Researchers in a 2004 National Bureau of Economic Research paper found that “riots depressed the median value of black-owned property between 1960 and 1970, with little or no rebound in the 1970s,” and “that the racial gap in the value of property widened in riot-afflicted cities during the 1970s….Using both city-level and household-level data, we find negative, persistent, and economically significant correlations between riot severity and black-owned property values.”

It Didn’t Start (or End) in 1968

But 1968 was an amplified continuation of a pattern of urban rioting that began earlier. America suffered eight riots in 1965, 36 in 1966, 134 in 1967, leading up to the 141 riots of 1968. The Watts riots in Los Angeles in 1965, also proximately triggered by police mistreatment of African Americans, led to over 3,000 fires and 34 deaths.

Just in 1967, America saw nearly a billion dollars in property damage, thousands of people injured, and 177 people killed in riots that resulted in over 20 cases of the National Guard being called in to quash citizens.

Many of the same cities, and even neighborhoods, that experienced unrest in 1968 saw riotous destruction along with protests in the past week. Chicago suffered over 80 fires in one night, a worse one-night record than in 1968.

We are far from done tallying the damages of the riots accompanying the George Floyd protests, which saw, as the Associated Press reported, “Curfews…imposed in major cities around the U.S., including Atlanta, Chicago, Denver, Los Angeles, San Francisco, and Seattle. About 5,000 National Guard soldiers and airmen were activated in 15 states and Washington, D.C.,” and fires, tear-gassings, and police cars set on fire from Reno to Fargo to Salt Lake City. Nearly 62,000 National Guardsmen have been acting as domestic law enforcement around the country.

Cleveland, Pittsburgh (at least 60 buildings damaged along with at least 44 arrests), Grand Rapids,  Charleston, Greensboro, Louisville, Portland, and Wilmington, Delaware, are still licking untallied wounds, and massive damage has hit Seattle (property destruction worse than that city’s 1999 World Trade Organization protests).

Insurers are confident that Minneapolis, where the murder of Floyd occurred and whose police force is facing the largest public opprobrium, is facing well over $25 million in property claims now with at least 220 buildings burned, though the chamber of commerce there grimly predicts economic damage more like $1 billion. Some economists guess, in the aftermath of story after story of sad businesspeople who saw their businesses looted or destroyed the very week they returned to business from the COVID-19 shutdown, that the riots may well shave another couple of percentage points overall off U.S. GDP this year.

That America has survived similar or worse waves of urban destruction doesn’t mean we can blithely write off either the destruction or the causes with which it was connected as something we don’t need to worry about unduly, especially when we recall that the larger issue of abusive policing of minorities is still lighting fires metaphorical and real decades after 1992.

Even beyond the shorter-term costs to individuals and cities of trying to rebuild after the destruction, we know that such bouts of chaos can and likely will mean decades of bad news for businesses, homeowners, and those whose quality of life depends on reliable access to a variety of commerce, or simply a sense of basic civic peace.

Police getting away with abusing and murdering citizens extrajudicially is terrible and cannot be countenanced. Setting fires and destroying buildings and businesses in cities is also terrible and ought not to be countenanced. America seems fated for now to suffer both these terrible injustices, with no obvious path out.

The many incidents of violently riotous police actions at events protesting that very behavior makes one worry that nothing short of dismantling urban policing from the ground up will do much, though Rep. Justin Amash’s (L-Mich.) nascent effort to quash police “qualified immunity” is a decent start.

It’s also too soon to know if 1968 is the most apt historical analogy for 2020—or if this year will prove to be a redux of 1967, or even 1965, pointing toward longer, hotter, more destructive summers ahead.

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Police departments are usually the biggest expense for an American municipal government. For the past week Americans have been getting a blunt demonstration of where that money has been going. Cops are beating up and tear-gassing peaceful protesters while actual looters run rampant. This is what we’re paying for?

Unsurprisingly, such police behavior has drawn attention to the movement to dramatically reduce the money cities spend on police departments.

This week, Los Angeles Mayor Eric Garcetti announced that the city would cut up to $150 million from the LAPD’s general funds budget and redirect that money elsewhere. If that actually happens, it could reverse a trend of annual growth in police spending. Los Angeles currently spends $1.8 billion on law enforcement out of its total $10.5 billion total budget—and that doesn’t include pensions and health care.

It may be tempting to see the Defund Police movement as a bit naïve. The L.A. “People’s Budget,” based on interviews with more than 1,000 Angelenos, suggests cutting law enforcement spending to less than 6 percent of the city’s general spending—instead of the current 54 percent—and redirecting that money to a host of social projects and housing programs. The dramatic disparity may partly reflect the fact that many of the groups involved with the survey hope to receive some of the redirected spending. Whatever they want to do with police budgets, the agenda here clearly isn’t about limiting the rest of the government.

But whether or not we agree about that part of the agenda, reducing the size and scope of police departments is a goal libertarians certainly support. Here are three things the #DefundPolice movement should take into consideration as it pushes for smaller police budgets:

1. If you don’t account for revenue from fines, fees, and forfeiture, this can all backfire against the poor. 

A city’s general fund isn’t always the sole source of a police department’s funding. In Los Angeles, the general fund accounts for about $6 billion of the city’s $10.5 billion budget. In any number of police departments across the country, their budgets are bolstered by money from fees and fines paid when somebody is arrested for a crime. Many police departments also are able to keep some (or even all) of the money or property they seize from people they arrest.

Thanks to the civil asset forfeiture process, police are often able to keep people’s money, homes, and vehicles through complicated court proceedings simply by accusing the owners of having earned the money or purchased the property through illegal means—without having to actually get a court conviction.

There have been some recent reforms to forfeiture, in part because during our last recession, when revenue collection in cities went down, many police dramatically increased the use of asset forfeiture to maintain their budgets. They weren’t taking money from rich people or leaders of drug cartels. The targets of asset forfeiture are frequently low-income minorities and immigrants who lack the resources to fight back.

California adopted state-level changes in 2016 that make it harder for cops to keep people’s assets without a criminal conviction. But in many states, reform is still sorely needed. Just last month, an effort to change asset forfeiture rules in Arizona was killed by Democratic lawmakers—precisely because the change would deprive police departments of revenue.

In addition, some cities are overly dependent on fines and fees, turning the local cops into an especially nasty sort of tax collector. In the wake of the Michael Brown shooting in Ferguson, Missouri, black residents in several St. Louis-area communities railed against these small regimes of petty fines for extremely minor crimes and the harsh code enforcement systems that tried to extract homeowners’ money over tiny violations.

The Institute for Justice investigated and documented the harshness of these systems in Missouri and some other states, noting that some communities depend on fees and fines for as much as 30 percent of their budgets.

If this is how your community is paying for police and services, you can’t simply redirect your policing budget. Presumably, cutting back on police will reduce the number of fees and fines being extracted from citizens. That would be good! But that means the local government will have less money, and if it isn’t willing to do without this money, the police will be pressured to find more reasons to cite and fine citizens for minor crimes. And guess what? Mark Zuckerberg is not going to be paying them.

2. Police employee pension commitments are crushing your budgets.

While it’s tempting to see these militarized police forces and think we’re spending too much of our tax money on riot gear, pepper spray, and armored vehicles, the reality is that this money is just a small part of the department’s budget. LAPD Chief Michael Moore noted after the announcement of budget cuts that 96 to 97 percent of that budget is police salaries and “other payroll costs.”

Among those “other payroll costs” across the country are billions upon billions of pension debt payments for city employees. And because police represent cities’ largest expense, that means police officers represent a huge chunk of that pension debt. That cannot simply be “defunded”; it must be accounted for somehow.

L.A. spends about $1.2 billion annually—13 percent of its budget—on pension payments. And California’s constitution actually prohibits scaling back public employee benefits. Los Angeles cannot just cut wages and pensions. It will have to eliminate positions or do a hiring freeze.

Many cities have done a terrible job of managing pension debts, which are guaranteed to government employees when they retire. If the market doesn’t perform well to cover the guaranteed payments, the government (and the taxpayers) are on the hook for these costs.

These pension costs have ballooned over the years, because some cities have not put in enough money to cover the debts or prepared for losses if the economy turns poor. Detroit in Michigan and Stockton and San Bernardino in California and went bankrupt during our last recession in part because they could not keep up with pension costs.

As those pension costs go up, cities have had to cut all those other services that these people would prefer to than police. And yet there’s still a tremendous amount of resistance to shifting public employees to a defined contribution system where cities pay money up front into retirement systems, a mechanism that can be adjusted based on the state of a city’s finances and doesn’t leave taxpayers with massive costly lifetime burdens for retired city employees.

Law enforcement pensions have contributed significantly to the amount of money cities are forced to commit out of their budgets. This has taken increasingly large bites out of what other services a city is able to offer its citizens. Any discussion of defunding the police needs to address this massive debt bomb that is draining city coffers dry.

3. What laws, regulations, and taxes are you willing to give up? 

When I saw #DefundPolice trending on Twitter, I confess that I snorted, “We can’t even get marijuana fully legalized across the country and people are talking about defunding the police?”

This wasn’t entirely fair of me. One thing libertarians have in common with many urban leftists is a desire to eliminate laws that criminalize what people consensually consume or otherwise do with their bodies. But while we should legalize drugs, prostitution, and other vices, that isn’t all that serious police reform requires. Eric Garner died at the hands of the New York cops in part due to suspicions he was holding and selling “loosies”—black market loose cigarettes. And that city’s black market for cigarettes exists entirely due to the city’s high taxes and government-mandated price floor.

Similarly, California still has a massive marijuana black market despite legalizing the recreational use and sale of weed. That’s because cities and the state have piled on so many taxes that it’s just cheaper not to go legit. The reasons the government is policing people have changed (“Drugs are bad!” becomes “You’re not licensed!”), but the people being targeted really haven’t. The people most likely to fined or arrested by police are those who can’t afford the cost that cities are demanding of them.

The police are being used to enforce a host of regulations that have fundamentally criminalized a lot of poorer people’s economic activities, entirely because the government isn’t getting a cut of the money. It’s all framed as a public health and safety issue. Who knows where those street vendor hot dogs have been unless the sellers obey expensive mandates and pay for the licenses that prove they’re following the rules? What horrible things might happen to your fingernails if you don’t go to a nail salon with licensed technicians?

All of these systems serve as revenue for city government and are enforced by the police. Scaling back and eliminating many of these regulations and taxes would make life and economic participation a whole lot easier and safer for poorer citizens.

But that only works if cities are willing to give up that money. Will this movement to defund the police grasp the role that policing plays in city revenue? Improving our freedoms means cutting back not just on the police baton, but on the red tape.

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Walter Ogrod is now a free man after living for almost 30 years in prison, including 24 years on Pennsylvania’s death row waiting to be executed for a murder that prosecutors no longer believe he committed.

As Reason previously reported, the Philadelphia District Attorney’s Office Conviction Integrity Unit (CIU) released findings earlier this year that Ogrod was “likely innocent” of the 1988 murder of Barbara Jean Horn. No witnesses or DNA evidence ever tied him to the crime. Instead, Ogrod was convicted after detectives used coercive tactics to extract a false confession. CIU found that the detectives involved in Ogrod’s case were tied to at least five other cases where coercive tactics resulted in false confessions. CIU also uncovered prosecutorial misconduct in Ogrod’s trials. Prosecutors used unreliable jailhouse informants to testify against Ogrod and suppressed evidence of Horn’s true cause of death.

In March, Ogrod began to display COVID-19 symptoms. Ogrod’s lawyers attempted to get him proper treatment and out of State Correctional Institution Phoenix, as prisons have been hit hardest by the pandemic. A judge ordered his transportation to a hospital for treatment, but the Pennsylvania Department of Corrections did not comply. The order was eventually vacated on jurisdictional grounds and Ogrod was forced to wait until June for relief.

On Friday, Philadelphia Court of Common Pleas Judge Shelley Robins New vacated Ogrod’s conviction and sentence.

James Rollins, who represents Ogrod, reacted in a statement.

“Today Mr. Ogrod has been given the opportunity to put his unfair trial and harrowing incarceration behind him and begin to create a new, better life. It is a profound moment, filled with happiness and hope.  Not only for Mr. Ogrod, but also for other innocent, wrongfully convicted individuals. There is hope that the system will learn from Mr. Ogrod’s case and there is hope that Barbara Jean Horn’s real killer will be brought to justice,” he said.

Hannah Cox, National Manager of Conservatives Concerned About the Death Penalty, said Ogrod’s case was “just the latest example of a broken system that risks the life and liberty of innocent people.”

Ogrod’s advocates included Sharon Fahy, Horn’s mother, who has tragically gone 30 years without knowing the identity of the man who murdered her young daughter. Fahy previously filed an amicus brief in support of Ogrod’s petition for postconviction relief in March.

“Two families have already been destroyed. There is no question in my mind that Mr. Ogrod is innocent and that he should be released from prison immediately,” she said at the time.

CORRECTION: A previous version of this article said Walter Ogrod spent almost 30 years on death row. While Ogrod has been in prison since 1992, he was sentenced to death row in 1996. Ogrod has been on death row for 24 years.

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

Ever wondered what it’s like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

• After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent’s hard-pass credentials (which allow on–demand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone’s have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t. So the correspondent’s suspension likely violated due process.
  
• Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he’s not in need of assistance. Instead of leaving, they call in a dozen “tactical reinforcements,” triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
• To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don’t want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won’t do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
• “Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems,” last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: ”The Virus’s emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.” Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court’s order is stayed.
• In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
• Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter’s status as a gov’t official.
  
• Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
• Kentucky outlaws “bodily dismemberment, crushing, or human vivisection of the unborn child” unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
• Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
• St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman’s description of her robber, and he’s convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman’s phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should’ve heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
• Georgia’s ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party’s First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county’s extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is “coming soon” and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

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A British research team has concluded that hydroxychloroquine is not an effective treatment for COVID-19 and has halted its use in the United Kingdom’s RECOVERY trial. That trial was established in March to evaluate the efficacy of various medicines for the treatment of COVID-19.

The Independent Data Monitoring Committee for the trials conducted an unblinded review of the hydroxychloroquine data. Based on that review, the researchers have concluded that “there is no beneficial effect of hydroxychloroquine in patients hospitalised with COVID-19.” Martin Landray, one of the principal investigators, told reporters: “This is not a treatment for COVID-19. It doesn’t work.”

According to the statement from the RECOVERY trial investigators,

A total of 1542 patients were randomised to hydroxychloroquine and compared with 3132 patients randomised to usual care alone. There was no significant difference in the primary endpoint of 28-day mortality….There was also no evidence of beneficial effects on hospital stay duration or other outcomes.

These data convincingly rule out any meaningful mortality benefit of hydroxychloroquine in patients hospitalised with COVID-19.

“The RECOVERY Trial has shown that hydroxychloroquine is not an effective treatment in patients hospitalised with COVID-19,” said Peter Horby, the chief investigator for the trial, in the statement. “Although it is disappointing that this treatment has been shown to be ineffective, it does allow us to focus care and research on more promising drugs.”

While the RECOVERY researchers was looking into hydroxychloroquine’s effects on hospitalized patients, an American-Canadian team of researchers was concluding that the drug also does not work as preventive treatment.

Based on some observational studies, some proponents of hydroxychloroquine remain enthusiastic about the possibility that adding zinc will boost the drug’s efficacy. Forthcoming results from ongoing trials will eventually corroborate or refute that lingering hope.

In the wake of the now scandalously discredited observational hydroxychloroquine study published on May 22 in The Lancet, these results should help clinicians, patients, the public and policymakers make better decisions about how best to treat COVID-19.

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The U.S. Supreme Court’s 2019–2020 term is rapidly reaching its conclusion. By the end of June, the Court is expected to decide several high-profile cases that involve some of the most contested issues in American law, from abortion to school choice to federal anti-discrimination rules. Here are three cases to watch in the coming weeks.

June Medical Services v. Russo

The state of Louisiana requires doctors who perform abortions to have admitting privileges at local hospitals. That restriction sparked a constitutional challenge from abortion providers, who argue that the law serves no valid health or safety purpose and violates the Court’s own precedents forbidding regulations that place an “undue burden” on abortion rights.

If that sounds familiar, it’s because the Court decided a nearly identical dispute in Whole Woman’s Health v. Hellerstedt (2016), striking down a Texas law that required abortion providers to have admitting privileges at local hospitals. Among other things, June Medical Services will show whether a majority of the Court is interested in following Whole Woman’s Health or in crafting a new jurisprudence that is more deferential towards state restrictions on abortion.

Espinoza v. Montana Department of Revenue

In 2015 the Montana legislature created a scholarship program “to provide parental and student choice in education.” It operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify may use the money to help send their children to a “qualified education provider,” a category which includes religiously affiliated K–12 private schools.

But the Montana Supreme Court killed the program off three years later, holding that it violated a provision of the Montana Constitution which bans the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

The question for the U.S. Supreme Court is whether the state may prohibit the sort of school choice initiatives that the Court itself has previously upheld under the First Amendment. In Zelman v. Simmons-Harris (2002), for example, the Supreme Court ruled in favor of a school choice program in Cleveland, Ohio. The program’s opponents claimed it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. But the Court said such a system passes constitutional muster as long as it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

Bostock v. Clayton County, Georgia

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” Gerald Lynn Bostock argues that Clayton County, Georgia, violated this provision when it fired him from his job as a child welfare services coordinator solely because of his sexual orientation. The far-reaching question before the Supreme Court is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex” under Title VII.

As I’ve previously noted, Bostock and his lawyers have enlisted the support of a surprising legal ally in the case:

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice [Antonin] Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.

“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

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According to the initial police account of George Floyd’s deadly May 25 encounter with Minneapolis cops, he “physically resisted officers,” who called an ambulance because he “appeared to be suffering medical distress.” The contradictory information that later emerged, which culminated in criminal charges against all four officers, came largely from cellphone, security, and body camera footage.

Without that evidence, the case might have become a swearing match between the cops, who were arresting Floyd for using a counterfeit $20 bill, and the bystanders who watched in horror as Officer Derek Chauvin kneeled on Floyd’s neck for nearly nine minutes, ignoring his complaints that he could not breathe, past the point where he stopped moving and had no detectable pulse. The prompt dismissal of Chauvin and his colleagues, and the charges that prosecutors began to file four days after the incident, once again show how ubiquitous cameras can help hold police accountable when they abuse their powers.

Yet that knowledge was little comfort to Floyd’s family and friends, who were wondering how such a thing could have happened in the first place rather than marveling at the police-correcting value of cameras worn by officers, carried by pedestrians, and mounted on storefronts. For all their potential to reveal and publicize police misconduct, the evidence that cameras make it less likely is so far equivocal, and they manifestly did not save Floyd’s life. But there are some reforms that could prevent other people from meeting a similar fate.

1. Ban Chokeholds

The most obvious problem highlighted by Floyd’s death is police restraint techniques that can fatally obstruct breathing. Floyd was not only pinned by Chauvin’s knee; he was lying on his stomach with his hands cuffed behind him as two other officers applied pressure to his back and legs.

The autopsy report issued by the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” An independent autopsy commissioned by Floyd’s family, by contrast, said he died from “mechanical asphyxiation.” But both reports agreed that the manner of death was homicide.

Law enforcement experts who watched cellphone video of the incident immediately condemned the officers’ conduct, especially Chauvin’s application of his knee to Floyd’s neck. “The maneuver, billed as a means to gain control of a thrashing suspect, requires pressure on the side of an individual’s neck,” the Minneapolis Star Tribune reported. “At Hennepin Technical College, which trains about half of Minnesota’s police officers, students were taught to use a form of the technique until at least 2016.”

Mylan Masson, a veteran Minneapolis police officer who used to direct the college’s law enforcement and criminal justice education center, said it was clear that Chauvin used the technique inappropriately. “Once the [officer] is in control, then you release,” Masson told the Star Tribune. “That’s what use of force is: You use it till the threat has stopped.” George Kirkham, professor emeritus at Florida State University’s College of Criminology and Criminal Justice, called the prolonged compression of Floyd’s neck “outrageous, excessive, unreasonable force under the circumstances,” since the officers were dealing with suspected property criminal who was “prone on the ground” and “no threat to anyone.”

The possibility that such techniques will be misused with deadly effect has led some police departments to eschew them. A 2016 review of 91 major police departments’  policies by the Police Use of Force Project found that 21 of them explicitly prohibited “chokeholds and strangleholds.”

The issue received renewed attention in 2014, when Eric Garner died following a struggle with New York City officers who were trying to arrest him for selling untaxed cigarettes. Like Floyd, Garner complained that he could not breathe. As with Floyd, this did not deter the cops from using what turned out to be deadly violence against an unarmed man accused of a petty crime.

Video showed Officer Daniel Pantaleo using what looked like a chokehold, a maneuver the New York Police Department had banned. Pantaleo and his supporters denied that, saying his arms slipped while he was trying to use a department-approved takedown technique. The medical examiner concluded that Garner died from “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.” Despite the official department policy against chokeholds, a police review board had received more than 1,000 complaints about the technique during the previous five years.

As that suggests, official policy goes only so far, although it presumably has some restraining effect. After Floyd’s death, the San Diego Police Department announced that it would ban the carotid restraint, a “sleeper hold” that aims to induce unconsciousness by applying pressure to the carotid arteries on the sides of the neck, thereby cutting off the flow of blood to the brain. New York Mayor Bill de Blasio this week reversed his position on a bill that would criminalize chokeholds, saying he would support it as long as there was an exception for “life or death” situations.

2. Restrict Other Kinds of Force

In addition to chokeholds, the Police Use of Force Project considered seven other policies in its 2016 report. It found that 34 of 91 departments required officers to use de-escalation techniques, when feasible, before resorting to force; 77 had policies describing the types of force that are appropriate to use in response to different kinds of resistance; 56 required verbal warnings, when feasible, before the use of deadly force; 19 prohibited officers from shooting at moving vehicles that do not pose a deadly threat; 31 required officers to exhaust all reasonable alternatives before using deadly force; 30 required officers to intervene when their colleagues use excessive force, as three officers failed to do in Floyd’s case; and 15 required officers to report all uses and threats of force—as the Minneapolis Police Department already does.

State lawmakers also can impose restrictions on police use of force. A California law enacted last year says the use of lethal force is justified only when “the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.” That standard replaced a looser one allowing police to use lethal force whenever a “reasonable officer” in the same circumstances would have done the same.

3. Make It Easier to Fire Bad Cops

While the officers who arrested Floyd were fired immediately, that is by no means typical in excessive-force cases. Pantaleo was not fired until five years after Eric Garner’s death, after a New York grand jury declined to indict him and the U.S. Justice Department decided not to charge him.

An administrative judge concluded, and Police Commissioner James O’Neill agreed, that Pantaleo recklessly used a prohibited chokehold, applying pressure to Garner’s neck in a way that inflicted injury and helped trigger an asthma attack. But the New York City Patrolmen’s Benevolent Association backed Pantaleo until the end and condemned his dismissal.

Police unions don’t just reflexively defend officers who injure or kill people, even in situations where the facts are damning. They insist on contracts that make it very difficult to fire bad cops.

“Consider the binding arbitration that has become a standard feature of virtually all police contracts, which are often negotiated in secrecy,” Reason‘s Shikha Dalmia writes. “Binding arbitration allows cops to appeal any disciplinary action taken by their superiors to outside arbitrators such as retired judges. In theory, these folks are supposed to be neutral third parties. In reality, they are usually in the pockets of unions and dismiss or roll back a striking two-thirds of all actions, even against cops with a history of abuse and excessive violence. The upshot is that police chiefs are powerless to clean house, even as community complaints pile up.”

As Reason‘s Peter Suderman notes, Sgt. Brian Miller, a Broward County sheriff’s deputy who conspicuously failed to intervene in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, was fired for “neglect of duty.” But Miller challenged his dismissal with support from his police union, and last month he “was not only reinstated but given full back pay.”

During a reckless middle-of-the-night raid last March, police in Louisville, Kentucky, killed the unarmed Breonna Taylor after her boyfriend mistook the invaders for criminals and fired a shot at them. “Taylor’s death resulted in calls for the officers involved to be fired,” Suderman notes, “but Louisville Mayor Greg Fischer warned that the process would be slow. A significant part of why he expected it to take so long, he said, was the city’s collective bargaining agreement with the police union. Fischer lamented the process, saying he recognizes ‘the system is not a best practice for our community.'”

4. Increase Police Transparency

Dalmia notes several other “special protections that police enjoy.” They include rules “allowing police departments to destroy civilian complaint records against officers,” “giving cops involved in shootings several days before filing their statements,” and “barring citizens from filing complaints anonymously and revealing their names to the offending officer.”

In Pantaleo’s case, Commissioner O’Neill publicly released the findings of the department’s internal investigation, deviating from the usual policy, favored by police unions, of keeping such information secret. “New York state law shields police discipline records from public view,” Reason‘s Scott Shackford notes, concealing both the inconsistency of penalties and the histories of officers who are accused of wrongdoing.

As C.J. Ciaramella reported here this week, “New York civil liberties groups are again trying to roll back the state’s expansive police secrecy laws” in the wake of Floyd’s death. California already has made some progress on that front, Steven Greenhut notes, with a 2019 law requiring that “police agencies release reports or findings related to police officers’ discharge of a firearm or serious use of force, as well as sustained incidents by officers of sexual assault or dishonesty.”

The lack of transparency can mean that even when one law enforcement agency manages to fire a bad cop, and even when he is decertified for police work, another one hires him. “There is no nationwide mechanism allowing every police department in the country to access an applicant’s work history with out-of-state departments,” Anthony Fisher pointed out in Reason several years ago. “This information gap allows officers banned from working as police in one state to secure law enforcement employment in another state.”

5. Abolish Qualified Immunity

Under 18 USC 1983, people can sue police officers for violating their constitutional rights under color of law. But since 1982, the Supreme Court has said such lawsuits are allowed only when police violate a “clearly established” right, which in practice often means that victims of police abuse have no recourse if they cannot cite precedents with nearly identical facts. And since 2009, when the justices said courts can dismiss lawsuits against cops without even deciding whether they violated the plaintiff’s rights, it has become increasingly difficult to find the precedents necessary to overcome such “qualified immunity.”

The upshot, as 5th Circuit Judge Don Willett has observed, is that “important constitutional questions go unanswered precisely because those questions are yet unanswered.” He added that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Supreme Court Justices Clarence Thomas, Sonia Sotomayor, and Ruth Bader Ginsburg—who don’t agree about much else—likewise have expressed concern about the qualified immunity doctrine.

This term the Supreme Court is considering a bunch of petitions that provide an opportunity to revisit that doctrine, which has become a license for outrageous police conduct. The defendants in those cases include police officers who shot a 10-year-old boy while trying to kill his dog; wrecked a woman’s home by bombarding it with tear gas grenades after she agreed to let the cops inside so they could arrest her former boyfriend; knocked out a woman and broke her collarbone by lifting her up and throwing her to the ground while responding to an erroneous report that she had been the victim of a domestic assault; and sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.

“Ending qualified immunity wouldn’t end police brutality,” Reason‘s C.J. Ciaramella notes, “but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.” In case the Supreme Court decides not to step in, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.), plans to introduce a bill that would put an end to qualified immunity. Three senators—Ed Markey (D–Mass.), Cory Booker (D–N.J.), and Kamala Harris (D–Calif.)—are working on similar legislation.

“Qualified immunity is the cornerstone of America’s near-zero accountability policy for law enforcement,” says Clark Neily, vice president for criminal justice at the Cato Institute. “It is an illegitimate, judge-made legal doctrine that has systematically undermined our right to be free from the illegitimate use of force by government agents and that helped set the stage for the brutalization of George Floyd and countless others, particularly in communities of color. We applaud the legislative efforts of the numerous members of Congress—in both the House and the Senate— who have stepped forward to right this historical wrong and create a culture of genuine accountability for police, prosecutors, and other public officials.”

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“The lockdown has saved hundreds of thousands, if not millions, of lives and spared American hospitals the horrors of rationing care.“

That was the resolution of a public debate hosted via Zoom by the Soho Forum on Monday, June 1, 2020. It featured Marty Makary, a surgical oncologist at Johns Hopkins, and Knut Wittkowski, former head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University.

The Soho Forum typically hosts Oxford-style debates, in which a live audience votes before and after the event, and the debater who swayed the most people wins the contest. Because this debate took place over Zoom, we did things a little differently. The online audience was asked to vote before the debate. If you voted before the debate, please go to sohovote.com after you listen to the podcast and cast your final vote. But if you didn’t register your initial vote before the debate started on Monday evening, your final vote won’t be counted.

Arguing for the affirmative was Marty Makary, a surgical oncologist at Johns Hopkins and the author of the 2019 book The Price We Pay: What Broke American Health Care—and How to Fix It.

Knut Wittkowski argued for the negative. Wittkowski is the CEO of ASDERA LLC, a company discovering novel treatments for complex diseases from data of genome-wide association studies. Wittkowski also served for 20 years as head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University in New York City.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Monday, June 8, 2020, at noon EST.

Audio production by John Osterhoudt.
Photo: Maria Khrenova/ZUMA Press/Newscom

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Following George Floyd’s death at the hands of Minneapolis police, a grassroots movement has emerged urging university officials to cut ties with local police departments.

The epicenter of this push has been the University of Minnesota (UM), which has announced that it would cease a huge portion of its collaboration with the Minneapolis Police Department (MPD). The university’s move was sparked by the student body president, Jael Kerandi, who demanded a full termination of the university’s police contracts in a May 26 letter that gave the administration 24 hours to respond.

The following day, the university announced that it will no longer work with MPD at large events such as football games, limiting its involvement with the department to cooperation with the University of Minnesota’s Department of Public Safety.

Meanwhile, in Worcester, Massachusetts, the local cops’ abusive treatment of protesters has prompted Clark University to discontinue its partnership with the police department. Student petitions demanding that universities end police cooperation have garnered thousands of signatures at New York University, Georgetown University, and the University of California, among others.

Georgetown Student Association President Nicolo Feretti says the movement’s primary goal on his campus is to reduce the presence of Metropolitan Police Department (MPD) officers in student life. Armed MPD officers often accompany the university’s unarmed public safety officers responding to mere noise complaints, he says. Although the campaign is still in its “information-gathering stage,” Feretti adds that a meeting with Georgetown University Police Department Chief Jay Gruber to discuss student concerns is in the works.

Although Feretti doubts that Georgetown will “completely get rid of MPD contracts,” he hopes the administration will at least “limit the extent of the contract to only use them in ways that would not be present in students’ lives.”

Such shifts could curb police power on campus without long legislative battles over institutional reforms. It would certainly send a potent message to police departments that they have overstepped their authority, and it would serve as an experiment in the effects of less invasive policing in collegiate communities.

The University of Minnesota’s move has prompted Minneapolis Public Schools and the Minneapolis Parks and Recreation Board, along with many smaller venues and organizations, to likewise end their contracts with city police. Feretti thinks a successful campaign at Georgetown could have similar chain effects throughout the neighborhood and the city. As more universities heed the demands of their student bodies, similar community challenges to police legitimacy may arise, increasing the impetus for wider reforms.

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