Tag: in-the-news

From Betzko v. Mick, decided March 28 by the Ohio Court of Appeals (Judge Robin Piper joined by Judge Robert Hendrickson):

Appellant, Clair [Buch] Betzko … [sued] Charles Mick, Karen Francis, and Teresa Bayer. Betzko is the former mayor of the village of New Holland…. Francis and Bayer had … frequently posted to social media and were administrators of a Facebook group page which was often critical on a variety of issues including public officials and the local government. Bayer also erected signs in her yard that stated, “STOP THE CORRUPTION” and “MAKE NH GREAT AGAIN DRAIN THE SWAMP STOP THE CORRUPTION.” In addition, the defendants participated in exchanges with an individual named Derek Myers. Myers is a freelance news reporter who published an electronic forum called The Advocate. Myers was behind several critical social media posts alleging public corruption and publishing unflattering articles in The Advocate.

Francis and Bayer became concerned that certain public officials and law enforcement officers had been stalking and harassing them due to their public commentaries. They made complaints and sent letters to various agencies, including then-Attorney General Mike DeWine. The letter to Attorney General DeWine provided a list of general concerns in a variety of areas, such as the possibility of abuse of power, speed traps, nepotism, inflated charges on water and sewer, intimidation, and harassment. The record does not reveal that any action or response was made in regard to the letter.

In 2018, Mick was hired as a village police officer under the supervision of Chief Jason Lawless. Soon after starting with the department, Mick met with Francis and Bayer in a park outside the village to “talk in general about the police force.” Francis and Bayer expressed their concerns with Betzko’s leadership of the village. Francis and Bayer also told Mick they suspected members of the police department were stalking and harassing them.

Betzko later learned of this meeting and accused Mick of violating the public trust. Betzko also believed there was a conflict of interest because he had personally filed charges against Bayer for intimidating a public servant and thought Mick should have gotten a “third-party opinion on it.” The “it” was evidently whether Mick should have talked with Francis and Bayer to begin with.

Following the meeting at the park, another woman, Brenda Landman organized a meeting with Mick at the police department. This meeting involved charges against an individual that she no longer wanted to pursue. When Betzko learned about the meeting with Landman, he called Mick instructing him to conclude the interview. Mick stopped the interview but claimed his discussion with Landman was over anyway. Betzko later testified that he believed it was improper for a police officer to meet with Landman alone and viewed the interview as another example of Mick being insubordinate and violating the public trust. The record does not clearly establish in what manner the public trust was being violated.

During this period of time, Chief Lawless resigned his position and left the state. The record suggests that the relationship between Mick and Betzko had become irreparably damaged. In a meeting with the new police chief, David Conrad, Betzko expressed the need to investigate Mick based on the interview he had with Landman and the meeting with Francis and Bayer. Betzko decided to fire Mick from the police force, but stopped short of informing him of his dismissal.

Meanwhile, Mick began an investigation into Betzko’s conduct. Mick believed that Betzko had obstructed his investigation by requesting that he stop interviewing Landman. Adding to Mick’s suspicion of Betzko, Mick believed there was evidence that Betzko had committed forgery. The document in question was a SF400 form that contained the signature of Chief Lawless. As Mick stated in his deposition, he was suspicious of the signature because he knew that Chief Lawless was out of state and therefore believed that Betzko had signed Lawless’ name to the document.

Mick obtained a search warrant for the village office to search for “[a]ny records, ledgers, or documents” related to the alleged forgery. On July 23, 2018, Mick served Betzko with criminal charges for felony forgery and misdemeanor obstruction at a city council meeting. Those charges were later dismissed by the Pickaway County Prosecutor.

On November 27, 2018, Bayer filed a malfeasance complaint against Betzko. The complaint contained the signatures of Bayer and nine other electors of the village of New Holland. The complaint, among other things, alleged that Betzko’s son had improperly changed the speed limit signs without prior approval from the Ohio Department of Transportation. The complaint also referenced the criminal charges brought by Mick and alleged that Betzko was “guilty of malfeasance in office.” The complaint was eventually dismissed….

Betzko sued, but the court rejected his claims. As to defamation (and false light), the court reasoned that Betzko had to show “actual malice”—knowing or reckless falsehood—but this hadn’t been shown:

The record contains a number of examples of name-calling and general incivility, but nothing that gives rise to an actionable claim in tort. “[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”

We have reviewed the statements made by the defendants in their criticism of Betzko and, while many of the statements can clearly be characterized as inconsiderate, unkind, or rude, we find no evidence such statements were made with actual malice….

The court also rejected the malicious prosecution claim:

To establish a claim for malicious prosecution, the plaintiff must prove (1) malice in initiating or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused….

Probable cause exists when there is sufficient information, derived from personal knowledge or from a trustworthy source, which would lead a prudent person to believe the accused committed an offense. Whether the accused actually committed an offense is not pertinent to a probable cause determination….

In this case, Mick had probable cause to charge Betzko with obstructing his investigation concerning Landman and for forgery concerning the SF400 document. Although facts later came to light that ultimately resulted in the dismissal of the charges, we find that Mick’s actions were commenced with probable cause.

We further find that Bayer’s participation in the statutory malfeasance complaint does not constitute malice and therefore is not actionable. While Betzko may believe that Mick and Bayer treated him unfairly, we find there was no actionable tortious activity to support a claim for malicious prosecution.

Judge Matthew Byrne concurred:

I do not doubt that Betzko was angered, distressed, and embarrassed by many of the negative comments made about him by the defendants. But Betzko, like the judges of this court, was elected. When a citizen decides to run for public office, he or she is choosing to serve the public, which necessarily involves being open to public criticism. Some of that criticism may be inaccurate, uncivil, or mean-spirited, or may be based on what the criticized person views as “misinformation.” In the social media era, many are more likely to shoot off a quick, sharp jab, which may or may not be well-informed, than to take the time to construct a well-reasoned argument. But whether the criticism that public officials face is inaccurate, uncivil, mean-spirited, or “misinformed” is beside the point, from a constitutional perspective. Criticism of elected officials is still protected speech….

A democratic republic cannot operate as it should, and the fundamental rights of individuals cannot be protected, if harsh criticisms of public officials are subject to policing by the courts each time a public official disagrees with that criticism. The same is true in a small village like New Holland, where Betzko was mayor….

[E]ven a public official like Betzko may win a defamation claim if the official can show that the defendant acted with “actual malice”… “… —that is, with knowledge that it was false or with reckless disregard of whether it was false or not” …. Betzko did not provide evidence of actual malice.

All freedoms have costs. One of the costs of the First Amendment and Article I, Section 11 of the Ohio Constitution is that sometimes people will say things that are unpleasant, and maybe even wrong, and there is no redress for the offended party. This is a cost worth paying.

The post Small-Town Libel appeared first on Reason.com.

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A lawsuit filed last month in a New York court seeks to prevent New York City’s foie gras ban from taking effect this coming November, on Black Friday. The suit challenging the ban was filed by Hudson Valley Foie Gras (HVFG) and La Belle Farm, which together “produce virtually all of the foie gras” that’s made in America. The plaintiffs seek to enjoin New York City from implementing the ban while they mount a broader legal challenge to overturn the ban entirely.

Foie gras, as I’ve explained many times, is the French term for fatty duck or goose liver. Farmers fatten the birds’ livers through a time-honored feeding process known as gavage, which capitalizes on these birds’ natural instinct to gorge themselves before migrating. Chefs, in turn, create some amazing dishes using foie gras as a main ingredient.

Animal-rights groups, a driving force behind New York’s ban, claim the process of producing foie gras is cruel. The farmers who produce foie gras, the chefs who cook with it, and the diners who enjoy it disagree.

Before the New York City Council chose sides and voted on the ban, HVFG invited council members and their staff to tour the farm and see how they produce foie gras. None came.

A lawsuit challenging the ban has been widely anticipated and welcomed, as I explained shortly after the city council implemented the ban.

“We will fight,” Ariane Daguin of leading foie gras seller D’Artagnan, based in New Jersey, told me in 2019.

Reached this week, Daguin welcomed that fight.

“Foie gras is a legal and wholesome agricultural product,” Daguin told me by email. “It happens to also be extremely delicious. A city council who refused to visit the farms has no business trying to ban it.”

In the suit, the plaintiffs contend that the city’s ban conflicts with various federal and state laws that allow foie gras to be produced and sold. The state-based claims, which the plaintiffs detail in the lawsuit, rest on both the state constitution and a state agricultural law that protects farms in the state “against unreasonable regulations.”

New York State has already tentatively weighed in on the ban. As the plaintiffs also note in the suit, the state’s Department of Agriculture and Markets informed New York City two years ago that its foie gras ban “directly and unreasonably restricts Plaintiffs’ farming operations in violation of” state law.

Beyond its solid legal claims, the lawsuit also explains the widespread economic damage the city’s foie gras ban would cause, impacting everyone from the plaintiffs’ farms and their employees to restaurateurs, chefs, and their staffs.

In the suit, they argue the ban “will inflict significant financial losses” on each party and on “the rural community in Sullivan County where they are major employers.” Combined, the plaintiffs say the ban would force them to lay off at least 100 employees. La Belle says the ban may force it to close entirely.

Other opponents of the ban have also warned about the dramatic impact a ban would have on both rural farming communities in the Hudson Valley and on top-flight restaurants in New York City.

“The fallout of the city’s foie gras ban shines a light on the tenuous relationship between rural regions and the metropolitan areas where agricultural products are sold,” the Albany Times Union reported last year. “The ripple effect of losing two duck farms in Sullivan County could be economically disastrous not just to the nearly 400 workers they employ, but to the local community that relies on the farms as an economic driver for the area.” 

But it’s not just the ban’s illegal requirements and crushing economic costs that worry farmers, chefs, and diners throughout New York State. It’s also the prospect of falling prey to yet another law that erodes food freedom. While the New York City ban, known as Local Law 202, targets only foie gras, many worry that if the court were to uphold the ban, it could open the door for local governments throughout New York State to ban any number of foods.

“Nobody wants their local government passing laws on what they’re allowed to have for dinner,” wrote Ed Phillips, the attorney for the foie gras producers, in an email to me this week.

“The statewide implications of upholding Local Law 202 should be extremely troubling for farmers and consumers alike,” Phillips says. “If upheld, municipalities might adopt similar sales bans aimed at other farming practices deemed objectionable by some, such as banning the sale of eggs produced by caged chickens, or the sale of beef produced by corn-fed cattle. Imagine a local law banning the sale of any ‘slaughtered’ meat products, which would force most everyone to become a vegetarian. That can’t be ok.”

It is far from ok.

I made a very similar foot-in-the-door argument to the U.S. Supreme Court four years ago in an amicus brief in a case that asked the Court to overturn California’s terrible foie gras ban. Last month, a federal appeals court upheld a 2020 ruling that confirmed California’s foie gras ban prohibits restaurants from cooking and selling foie gras for now but does not prohibit people in the state from having foie gras they buy delivered to residences so they may cook it at home.

As the lawsuit challenging New York City’s ban proceeds, chefs in New York, who’ve opposed the ban vocally, are proceeding as if the court will grant an injunction, and the ban ultimately be overturned.

“We’re working on a new menu and we’re planning to have foie gras on the menu, as we always have,” Marco Moreira, executive chef and owner of Tocqueville, in Union Square, told the New York Post last week. “We’re not slowing down any time soon for sure.” 

New York City Council members who voted in favor of the ridiculous foie gras ban and the animal-rights groups that supported it no doubt had hoped otherwise.

The post New York City Sued Over Illegal Foie Gras Ban appeared first on Reason.com.

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Congress issued its last official declaration of war 80 years ago today, marking the last time the president deferred to the war-making process outlined by Article I, Section 8 of the Constitution before entering a conflict. Since 1942, when it authorized the use of military force against Hungary, Bulgaria, and Rumania in World War II, Congress has abdicated its proper role in American war making. Blank-check authorizations now shield the president from domestic accountability for his use of military force.

The Constitution gives Congress the sole authority to declare war. Since the presidency of George Washington, it’s invoked that power 11 times to fight nations in five distinct conflicts—the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. In each case, the president had to first request congressional authorization either in writing or in person. He would explain his justification for why the U.S. should enter the conflict at hand. Congress would then put it to a vote—majority support was required, but most declarations were passed unanimously or near-unanimously—and pass a declaration of war in the form of a bill or joint resolution.

The Founding Fathers were rightly skeptical of an executive with an unbridled capacity to wage war. “Nations in general will make war whenever they have a prospect of getting anything by it,” John Jay wrote in Federalist No. 4. “Absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Such factors could motivate the executive “to engage in wars not sanctified by justice or the voice and interests of his people.”

Presidents once treated congressional approval as a necessary condition—a legal requirement—for the U.S. to enter hostilities. But this constitutionally ordained process has given way to more recent executives relying on a hodgepodge mix of authorizations and external validation to justify the use of military force without consulting Congress.

Some presidents have claimed justification through international organizations in order to enter conflicts. President Bill Clinton looked to the United Nations Security Council for approval to use military force in Haiti and didn’t seek the support of Congress. President Barack Obama didn’t secure authorization from Congress before U.S forces began to enforce a no-fly zone over Libya, which involved the use of military force over the course of seven months. According to the National Constitution Center, modern conflicts that lacked congressional approval include President Harry Truman’s entry into Korea; President Ronald Reagan’s military operations in Libya, Grenada, and Lebanon; and President George H.W. Bush’s invasion of Panama.

But far from being unjustly overridden, Congress has helped weaken its own role in war making. It’s passed several Authorizations for the Use of Military Force (AUMFs) designed to give the president broad discretion in specific conflicts or against clearly defined threats. However, these authorizations have permitted the president to use U.S. military force in dubious ways. The 2001 AUMF may have been drafted to let the president “use all necessary and appropriate force” against the parties behind the September 11 attacks, but presidents have capitalized on the authorization’s overly broad phrasing to justify 41 operations in 19 countries. While the president once had to convince members of Congress to support American entry into conflicts, lawmakers themselves have diluted their say by signing away so much power.

Debate abounds over presidential discretion in many realms of conflict. Scholars and commentators question what falls under the president’s purview and what is only permissible after a congressional declaration of war: defensive strikes, actions against nonstate actors, engagement in low-level hostilities, deployment of peacekeepers, enforcement of no-fly zones, and on and on. Regardless of the nuances, it’s undeniable that the mechanisms behind American war making have changed enormously in the past century.

With that, it’s worth remembering that the president’s current war powers come not just at the expense of Congress but the American people as well. Bringing lawmakers into the fold of war authorization ensures that their constituents’ approval or disapproval of a conflict is voiced, at least in theory. It’s now effectively optional for a president to make his case for force and face the political costs that follow. Modern American engagement in hostilities is not representative of a popular mandate but rather presidential lawyering and decision making carried out beyond public view.

The post Today Marks 80 Years Since Congress Last Bothered To Declare a War appeared first on Reason.com.

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6/4/1923: Meyer v. Nebraska decided.

 

The post Today in Supreme Court History: June 4, 1923 appeared first on Reason.com.

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Humans get stuff wrong. We do it all the time. We’re biased and blind and overconfident. We’re bad at paying attention and terrible at remembering. We’re prone to constructing self-serving narratives after the fact; worse, we often convince ourselves they are true. We’re slightly better at identifying these distortions in others than we are in our own thinking, but not by much. And we tend to attribute others’ mistakes to malice, even as we attribute our own to well-intentioned error.

All of this makes the very concept of misinformation—and its more sinister cousin, disinformation—slippery at best. Spend 10 minutes listening to any think tank panel or cable news segment about the scourge, and it will quickly become clear that many people simply use the terms to mean “information, whether true or false, that I would rather people not possess or share.” This is not a good working definition, and certainly not one on which any kind of state action should be based.

People believe and say things that aren’t true all of the time, of course. When false beliefs influence the outcomes of major elections or, say, decision making during a pandemic, it’s reasonable to consider ways to minimize the ill effects those false beliefs can create. But efforts by public officials to combat them—and tremendous confusion over how to identify them—may well make things worse, not better.

The battle over the appropriate response to disinformation boiled over in late April, when the Department of Homeland Security announced the creation of a Disinformation Governance Board. There appears to have been astonishingly little thought put into how the public might receive such a declaration, including the board’s rather Orwellian moniker and its equally evocative acronym: DGB.

Several panicked clarifications by Secretary of Homeland Security Alejandro Mayorkas later, the board appears to be a relatively small-scale operation focused on an odd assortment of topics, including disinformation originating from Russia that might impact the next U.S. election and the dissemination of false information about U.S. immigration policies by border smugglers. This understanding of disinformation as false information purposely incepted for sinister ends by foreign agents is likely the least controversial formulation of the concept.

Still, as an open letter from Protect Democracy, the Electronic Frontier Foundation, and Columbia University’s Knight First Amendment Institute succinctly put it: “Disinformation causes real harms, but the Constitution limits the government’s role in combating disinformation directly, and the government can play no useful role at all in the absence of public trust. The announcement of this Board, housed in a Department with a checkered record on civil liberties and without clarity and specificity on its mandate, has squandered that trust.”

“The board does not have any operational authority or capability,” Mayorkas hastened to reassure CNN’s Dana Bash. “What it will do is gather together best practices in addressing the threat of disinformation from foreign state adversaries, from the cartels, and disseminate those best practices to the operators that have been executing in addressing this threat for years.”

If those operators include the social media companies, as seems likely, then the next logical question is to wonder what they are supposed to do with this helpful government guidance and how it might be perceived in context.

There are many, many ways to be wrong. In the United States, nearly all of them are protected by the First Amendment. So far, most efforts by the politically powerful to combat misinformation have approached free speech concerns with some degree of circumspection.

During his remarks at a summit on disinformation and democracy, sponsored by The Atlantic and the University of Chicago’s Institute of Politics, former President Barack Obama was careful to say that he understood the limits on state action, even as he advocated transparency laws and other measures: “I am close to a First Amendment absolutist,” he said. “I believe in the idea of not just free speech, but also that you deal with bad speech with good speech, that the exceptions to that are very narrow.” Even better: “I want us all, as citizens, to be in the habit of hearing things that we disagree with, and be able to answer with our words.”

But there’s a reason the announcement of the Disinformation Governance Board was greeted with such a clamor: The public is increasingly skeptical that officials will honor the limits of constitutional protections for speech, and increasingly aware that the status quo has moved toward censorship by proxy.

Nina Jankowicz, who was tapped to run the DGB, appeared to have a more flexible view of the limits of state power: “I shudder to think about if free speech absolutists were taking over more platforms, what that would look like for the marginalized communities all around the world,” Jankowicz told NPR in April, shortly before the announcement of her new position. “We need the platforms to do more, and we frankly need law enforcement and our legislatures to do more as well.”

At the height of COVID-19, President Joe Biden and his administration repeatedly made what it called “asks” of social media and search companies to remove content it deemed disinformation. Biden also accused social media companies of “killing people” by allowing the spread of anti-vaccine messages. (He later amended his remarks, telling reporters “Facebook isn’t killing people” but maintaining that a small group of Facebook users spreading misinformation were: “Anyone listening to it is getting hurt by it. It’s killing people.”) White House Press Secretary Jen Psaki elaborated that the administration was “flagging problematic posts” containing “information that is leading to people not taking the vaccine,” while calling for the platforms to institute such changes as downplaying certain content and automatically banning users who have been suspended on other sites.

Again, after having been accused of actual murder by the president of the United States, it seems likely those firms greeted those “asks” as something more akin to “demands.”

A careful reader might also note that the accuracy of those “problematic” posts seems less central to the administration’s thinking than the behavior they might occasion. That lack of clarity was echoed by Surgeon General Vivek Murthy, who has called on tech companies to collect and hand over data about “COVID misinformation,” including its sources and its propagation through search engines, social media platforms, instant messaging services, and e-commerce sites. In an advisory on the topic, he recognized that he cannot compel them to do this. But the companies would hardly be engaging in wild speculation to wonder what consequences might befall them if they don’t cooperate.

“Defining ‘misinformation’ is a challenging task, and any definition has limitations,” Murthy concedes. He favors a definition that relies on “best available evidence,” but he acknowledges that “what counts as misinformation can change over time.”

The most notable recent case study of this phenomenon is guidance from public health officials about mask efficacy and best practices around mask wearing over the span of COVID-19. Under Murthy’s understanding of “misinformation,” the same post noting the weaknesses of poorly fitted cloth masks would have gone from being legit information to problematic misinformation and back again over the course of the pandemic.

The notion that a government-codified understanding of the “best available evidence” should be the standard for identifying misinformation demonstrates a spectacular misunderstanding of both free speech and the process of scientific inquiry—and a troubling lack of humility.

The problem is that governments are made of humans. And humans get stuff wrong.

The post You're Wrong About Disinformation appeared first on Reason.com.

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The Moore family has lived on 120 acres in rural Dixon Mills, Alabama, for over 100 years. Generations of the family, descendants of black, Native American, and Irish sharecroppers, worked the land in Alabama’s economically depressed Black Belt region and eventually built a considerable homestead.

Now, much of that land will likely be cleared to make way for the West Alabama Corridor. 

In 2021, the state of Alabama announced a construction project which includes a widening of U.S. Route 43 into a four-lane divided highway. This expansion—with state officials claiming a necessary seizure of 190–225 feet of land—entails the seizure of much of the Moore family’s property. It would also require demolishing four of their homes, which house 11 family members.

In response, the Moore family has launched the campaign “Seize No Moore Homes,” attempting to raise awareness of the challenge the U.S. 43 construction project poses to their way of life. In a statement, the family stressed that they are not opposed to expanding U.S. 43; they believe that the state is planning on taking an unnecessary amount of land rather than pursuing less destructive alternatives. 

“This proposed project will dismantle our private owned businesses. Our community will be without an auto mechanic shop, loggers, caterers, carpenters, fresh food vendors, farmers, and livestock would be affected,” the Moore family writes in their statement. “This community will never recover from this devastation. If an alternate route cannot be mapped out and the State of Alabama feels that it is necessary for this project to come through our community, at least give us the dignity as taxpayers, homeowners, and landowners to only take the minimally necessary amount of land.”

However, state officials say that the seizure is necessary and that engineers have attempted to limit the amount of property affected. As Tony Harris, an official with the Alabama Department of Transportation (ALDOT) said in a statement: “[w]e certainly understand the family’s concerns about some of their homes being impacted, and we have sincerely worked to limit the amount of property needed for the roadway.”

For now, it appears that the seizure of the Moore family’s land is constitutional. However, while the state may legally take their land, the Moore family is not convinced that the seizure is strictly necessary for the construction of an expanded U.S. 43. The family argues that only 94 feet of land is required, not the 190–225 feet proposed by the state. “The chief engineer of the project told us that the change we suggested was not considered solely because it would be too expensive for the state’s pockets, not because of environmental impacts,” said André Fuqua, whose aunt, Marolyn Moore, stands to lose her home. He continued, “[n]othing in their response explains why they aren’t willing to make that compromise.”

State officials say the project will spur economic development in one of Alabama’s poorest regions. “The goal of the West Alabama Corridor project is increasing economic opportunity for rural West Alabama residents,” said Harris, who acknowledged that ALDOT can’t accomplish this goal without taking private property. Harris claims that “it is an emotional process for those affected, including the men and woman at ALDOT who are involved.”

The Moore family believes that preserving its land—and the homes which stand on it—is crucial to preserving their family’s history and their way of life. The idea of it being destroyed for an expanding roadway is devastating: “It’s like death to the life we have had for 100 years,” said Carolyn Moore. “This is everything to us because no one can ever replace what we have here.”

The post An Alabama Family Is Fighting a Losing Battle Against Eminent Domain appeared first on Reason.com.

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President Joe Biden says he wants Democrats and Republicans to join together in responding to mass shootings like the recent attacks in Buffalo, Uvalde, and Tulsa. Yet the speech he delivered last night was suffused with the off-putting, aggressive self-righteousness that Democrats routinely display when they push new restrictions on firearms. Again and again, Biden implied that anyone who questions or resists the policy solutions he favors is complicit in the murder of innocents. As he frames the issue, there is no room for honest disagreement about the merits of those proposals, which are self-evidently the right thing to do.

That attitude is not exactly conducive to building the bipartisan consensus that Biden claims he wants. Nor is Biden’s egregiously misleading deployment of the facts that he says demonstrate the urgency and effectiveness of the laws he supports. Biden does not want a rational, empirically informed debate about the costs and benefits of those laws. He prefers emotion to logic, and he demands that everyone else—including the Republicans he accuses of callous indifference to mass murder—do the same.

“For God’s sake, how much more carnage are we willing to accept?” Biden asks. “How many more innocent American lives must be taken before we say ‘enough’? Enough.”

That “enough” refrain, which appears 11 times in Biden’s 17-minute speech, is not an argument. It is an emotional appeal that assumes the wisdom of Biden’s policy prescriptions and the bad faith of anyone who opposes them.

For the most part, Biden does not even attempt to explain why legislators should support those policies. “The issue we face is one of conscience and common sense,” he says. If you disagree with him, in other words, you either have no conscience or lack common sense.

According to the president, for example, it is obvious that Congress should expand the background-check requirement for gun buyers, which currently applies only to purchases from federally licensed dealers, to cover all firearm sales. He thinks that would help prevent mass shootings.

How would that work? That is a question Biden does not want us to ask, for obvious reasons.

The perpetrators of the three recent mass shootings all passed background checks, which means they did not have disqualifying criminal or psychiatric records. Biden mentions six other mass shootings. The expanded requirement that he wants Congress to enact would not have made a difference in any of those cases, because the perpetrators either passed background checks or obtained guns from others who bought them legally—a parent in one case and older friends in another.

According to a recent National Institute of Justice report on public mass shootings from 1966 through 2019, just 13 percent of the perpetrators obtained guns through illegal transactions. So even theoretically, an expanded federal background-check requirement would be a barrier for only a small minority of mass shooters. And in practice, it would not be much of a deterrent even for would-be killers with disqualifying records. Data from states that notionally mandate “universal background checks,” which require that every sale be completed through a licensed dealer, indicate that gun owners generally do not comply with that edict, presumably because of the additional time, inconvenience, and expense it would entail.

There is little reason to think gun owners who defy state background-check requirements would be more inclined to obey a federal law demanding the same thing. And since private transfers are both common and generally invisible to the government, effectively enforcing that law would be impossible. The upshot is that would-be mass killers would have little trouble arming themselves even if they could not pass a background check.

The same would be true for ordinary criminals, the vast majority of whom obtain guns from sources that would not be affected by a new federal law. Unsurprisingly, a 2019 study found that California’s 1991 expansion of background checks “was not associated with a net change in the firearm homicide rate over the ensuing 10 years.”

At the same time, the legislation that Biden supports would transform millions of otherwise law-abiding Americans into federal felons because they decline to jump through government-mandated hoops when they dispose of their own property. For that newly invented crime, they would face up to five years in prison.

Does the uncertain and probably negligible public safety benefit of expanding the background-check requirement justify the massive criminalization of hitherto legal transactions? That’s a question Biden does not even bother to ask.

Biden notes that “universal background checks” poll very well. But as The New York Times points out, there is a big difference between those survey results and the support that Americans register for this policy when they vote on ballot initiatives that would implement it. The gap between “expected support” (based on polling) and “actual support” (based on election results) was 28 points in California, 22 points in Washington, 36 points in Nevada, and 35 points in Maine.

When confronted by specific policies they have the power to approve, it seems, voters pay more attention to the details and the likely consequences than they do in opinion surveys. They hear arguments pro and con in the run-up to the election, and they tend to be much more skeptical than the polls suggest. That is the sort of debate Biden wants to avoid by insisting that virtually everyone agrees this is a good idea.

Likewise with the renewed federal ban on “assault weapons” that Biden has long favored. He does not want to talk about the details of that legislation, which would reveal that the category of firearms it targets is defined by functionally unimportant features such as folding stocks, pistol grips, and barrel shrouds. He does not want to address the basic problem with such laws: They leave untouched guns that fire the same ammunition at the same rate with the same muzzle velocity as the prohibited models.

Biden instead insists that everyone knows the 1994 “assault weapon” law, which expired in 2004 and included a ban on the sale of magazines that hold more than 10 rounds, reduced mass shootings. “In the 10 years it was law,” he says, “mass shootings went down. But after Republicans let the law expire in 2004 and those weapons were allowed to be sold again, mass shootings tripled. Those are the facts.”

There is little evidence to support the implication that the ban reduced mass shootings. Nor does it seem that the law had an important impact on gun violence generally.

“It is premature to make definitive assessments of the ban’s impact on gun crime,” University of Pennsylvania criminologist Christopher Koper warned in a 2004 report commissioned by the Justice Department. Koper and his co-authors noted that the use of “assault weapons” in gun crimes (primarily pistols rather than rifles) had declined in the six cities they examined, although that change “was offset throughout at least the late 1990s by steady or rising use of other guns” equipped with “large capacity magazines” (LCMs).

“The failure to reduce LCM use has likely been due to the immense stock of exempted pre-ban magazines,” Koper et al. said. “Because the ban has not yet reduced the use of LCMs in crime, we cannot clearly credit the ban with any of the nation’s recent drop in gun violence.” If the law were renewed, they said, “the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement.”

That report focused on the impact of restricting LCMs, which it suggested “could have nontrivial effects on gunshot victimizations” if it actually succeeded in reducing the supply available to criminals. Notably, the report did not treat the distinction between “assault weapons” and other semiautomatic firearms as important (emphasis added): “The few available studies suggest that attacks with semiautomatics—including [assault weapons] and other semiautomatics equipped with LCMs—result in more shots fired, more persons hit, and more wounds inflicted per victim than do attacks with other firearms.”

Koper et al. noted that the “assault weapon” ban “targets a relatively small number of weapons based on features that have little to do with the weapons’ operation, and removing those features is sufficient to make the weapons legal.” Biden himself has conceded that the 1994 ban did not affect the lethality of legally available firearms, noting that it allowed the sale of guns that were “just as deadly.” That is also true of the new, supposedly improved version that Biden is pushing.

“Evidence for the effect of assault weapon bans on mass shootings is inconclusive,” the RAND Corporation said in a 2020 review of research on state bans. It called the impact of such laws “uncertain.” Last week, RAND researcher Andrew Morral likewise noted that studies of “assault weapon” bans “don’t yet provide enough scientific evidence to indicate what their effects might be.”

What about the claim that Biden made in his speech? “By some definitions,” Morral writes, “mass shootings declined in the United States during the period of the federal ban, but because mass shootings remain, at least in a statistical sense, relatively rare, and because rates of mass shootings are highly variable from year to year, there are methodological challenges to reliably detecting even fairly strong effects for these laws.”

Biden not only ignores these subtleties; he refuses to acknowledge that there is any controversy at all about the impact of the 1994 ban. “These are the facts,” he says, implying that anyone who thinks otherwise is either woefully misinformed or maliciously dedicated to promoting the murder of schoolchildren.

Biden also implies that such horrifying crimes are much more common than they actually are. Since 2013, Northeastern University criminologist James Alan Fox reports, “77 students in grades K-12 have been killed in 11 school mass shootings,” defined as attacks that injured at least four victims and killed at least one student. When other shootings are included, an average of 10 students are killed with firearms in K-12 schools each year. By comparison, Fox notes, the annual death toll from pool drownings in this age group is about 400.

Biden strives to create a much different impression. “According to new data just released by the Centers for Disease Control and Prevention, guns are the number one killer of children in the United States of America,” he says. “The number one killer. More than car accidents. More than cancer. Over the last two decades, more school-aged children have died from guns than on-duty police officers and active-duty military combined. Think about that: more kids than on-duty cops killed by guns, more kids than soldiers killed by guns.”

Given the context of Biden’s speech, which begins with a description of his visit to Uvalde, casual listeners might conclude that he is talking about school shootings. But he actually seems to be talking about all gun deaths among Americans 19 or younger, including suicides, regardless of where they occur. These “school-aged children” include adults, gang members shot by other gang members, and anyone 19 or younger who kills himself with a gun.

These are all serious problems, of course, but they have nothing to do with crimes like the Uvalde massacre and virtually nothing to do with “assault weapons,” which are rarely used in homicides. In 2019, according to the FBI’s numbers, handguns accounted for more than 90 percent of the weapons used in gun homicides where the type of firearm was specified. Just 5 percent of those guns were rifles, only a subset of which would qualify as “assault weapons.”

That bait-and-switch is characteristic of Biden’s approach to gun policy, which confusingly shifts focus between problems of vastly different nature and magnitude, making it impossible to pin down his argument. Policies aimed at reducing the frequency or lethality of rare mass public shootings, or even rarer school shootings, don’t necessarily apply to the much larger category of gun homicides, let alone suicides (which account for most gun deaths). It is hard to tell exactly what Biden expects to accomplish or why he thinks the laws he favors would accomplish it.

When you combine that vagueness with self-righteous certitude, you have a recipe for the political stalemate that Biden decries, pretending that he bears no responsibility for it. Given the godawful legislation that Congress tends to produce when both parties cooperate, that may be just as well.

The post Biden's Gun Control Push Combines Slipperiness With Self-Righteous Certitude appeared first on Reason.com.

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A new op-ed in the Wall Street Journal Wednesday (written with the help of ex-prosecutor Andrew S. Boutros), following up on their Bloomberg Law piece from May 11, lays out some possible bases for the prosecution:

Consider Section 1512 of Title 18 of the United States Code, which makes it a crime to influence an official proceeding corruptly. A federal employee seeking to influence the proceeding by, for example, generating public pressure to change or lock in a justice’s vote risks Section 1512 liability.

Further, Section 641 of the federal law makes it a crime to steal government property. True, there is a circuit split about whether intangible property, like the information in the form of a draft opinion, can be stolen. The Justice Department also disfavors criminal prosecution if the stolen property was disseminated to the public. But neither of these points, particularly when viewed in the context of the D.C. Circuit Court of Appeals case law most likely applicable here, forecloses a Section 641 prosecution.

An applicable misdemeanor statute, Section 1905, also prohibits the disclosure of confidential government information. The court-sensitive information federal employees like law clerks obtain is confidential and comes to them solely through their employment….

Finally, a prosecutor seeking to protect the integrity of the judicial process could also pursue a conspiracy charge under Section 371. That charge was brought in 1919 after Ashton Embry, a law clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company.

Funk & Kendall’s earlier piece has some more details:

Disclosure of Confidential Information

The disclosure of confidential court information might also fit well within the parameters of the oft-overlooked misdemeanor statute, 18 U.S.C. § 1905 (prohibiting the “disclosure of confidential information generally”). Law clerks are federal employees, the information they obtain is “confidential,” it comes to them “in the course of [their] employment,” and the disclosure is not “authorized by law.” (United States v. Wallington(5th Cir. 1989)—U.S. Customs Service employee running unauthorized background checks for a friend; the confidential information need not come from, nor be generated by, a private party.) …

Finally, the fact of a 5-to-4 split ruling, the outcome of a case, or similar information can be said to “concern” or “relate to” the judicial “process,” “operation,” or “style of work”—at least, the prosecutor will so argue (although there is some room for defense counsel to claim otherwise).

Corruptly Influencing an Official Proceeding

Enacted with the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1512(c)(2) makes it criminal to, among other things, corruptly influence an “official proceeding.” The issuance of an opinion certainly is part of an official proceeding, and, depending on the evidence, it is foreseeable that a law clerk could seek to corruptly (that is, wrongly, as in United States v. Nordean (D.D.C. 2021)) influence a proceeding by, say, changing the outcome of the justices’ vote or the scope of the court’s holding, through external pressure, threat, intimidation, or otherwise.

Theft of Government Property

The taking of the confidential work product of the justices may also implicate 18 U.S.C. § 641, because, broadly described, it is the theft of government “property.” Perhaps the law clerk “stole” the paper (“thing of value”) on which the ruling was printed. If, as is likely, the value of the thing stolen is under $1,000, however, we are in misdemeanor territory.

The more substantive question, characterized by a current circuit split, is whether confidential “information” qualifies as a “thing of value.” As the U.S. Court of Appeals for the Second Circuit put it more than 40 years ago, the government has a “property interest in certain of its private records which it may protect by statute as a thing of value.”

It is hard to disagree. After all, federal courts decide issues of enormous economic, social, and legal importance (and value). Advance notice of a court decision creating or removing an asserted right or privilege (or ruling in favor of one litigant or another in a business dispute) would appear to be especially “valuable.” (See also United States v. Middendorf (S.D.N.Y. 2018)—intangible confidential information is “property.”)

Conspiracy to Defraud the U.S.

In 1919, Ashton Embry, a clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company. He was indicted for having violated 18 U.S.C. § 371. The prosecution’s theory was that, by releasing the opinion early, the clerk and his “co-conspirators deprived the Court of the right to announce its decisions at the customary time.”

In short, the early release upset the court’s established custom. The district court rejected Embry’s motion to dismiss, but the prosecutor thereafter, for undisclosed reasons, dismissed the case. Although the case was not seen to its conclusion, the unfinished prosecution of Embry is interesting if for no other reason than that it belies recent assertions that law clerk leaking is terra incognita. (Middendorf—holding that intent to defraud by sharing intangible information may be “incidental to another primary motivation.”)

I’m not sure how viable these arguments are; for instance, I’m not sure that § 1905, which is limited to “information [that] concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association” should be read to cover draft opinions; and the broad reading of “corruptly” in Nordean isn’t obviously correct. But I wanted to pass along the latest article, especially since its being in the Wall Street Journal is likely to make the arguments especially prominent.

The post Ex-Prosecutor Markus Funk and Judge Virginia Kendall (N.D. Ill.) on Possible Prosecution of S. Ct. Leaker appeared first on Reason.com.

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

Friends, come and see us at UCLA on Thursday, June 30th, for a very special event—a live recording of the Short Circuit podcast preceded by the unveiling of an interactive new study that identifies clearly established constitutional law sufficient to overcome qualified immunity in each federal circuit. The study also catalogues and grades state-law immunity doctrines, giving a fuller picture of each state and circuit’s civil rights ecosystem. RSVP today.

• D.C. gov’t worker alleges her numerous transfer requests were denied on the basis of sex—similarly situated male employees had their requests granted. D.C. Circuit (sitting en banc, with dissents): That is indeed something Title VII forbids, and we overrule our precedent saying plaintiffs also have to show they suffered “objectively tangible harm,” a high bar that does not appear in the statute.
• Juror 103: I work at a state hospital and I’m concerned that, if I vote guilty, I’ll get blowback at work from patients who are inmates. Prosecutor: We want to strike Black Juror 103 because, being Black, he is concerned that if he holds the Black defendant guilty, he’ll get blowback at work. R.I. Supreme Court: Sounds race-neutral to us. First Circuit: But not to us. Retry the defendant within 90 days or let him go.
• In the wake of the public outcry following the death of George Floyd, Connecticut legislators nullify provision of collective bargaining agreement that shielded state police officers’ disciplinary files from public disclosure. (The agreement expires this month.) A Contracts Clause violation? Second Circuit: States can impair contracts so long as it’s in the public interest, which this is. Denial of preliminary injunction affirmed.
• Visually impaired plaintiffs in New York file hundreds of substantively identical lawsuits, alleging that merchants’ gift cards violate the ADA because it’s impossible to distinguish the cards by touch. But they seem to be playing fast and loose with their allegations, which sometimes refer to nonexistent stores or claim they want to go to Banana Republic for its food. Second Circuit: These allegations are so implausible that the plaintiffs lack standing. Concurrence: Of course they have standing (they just lose on the merits).
• New York restaurant worker sues her former employer. “Not so fast,” says the employer, “You signed an arbitration agreement.” “I absolutely did not,” avers the worker. District Court: That’s just a self-serving denial, not evidence. Second Circuit: Ahem. It’s a SWORN self-serving denial, which is enough to raise a dispute over whether the worker actually signed the arbitration agreement.
• Allegation: Cornell physics professor is up for tenure when an aggrieved former student accuses him of rape years earlier. He’s subject to an investigation in which he is not fully informed of the allegations against him and the university refuses to interview witnesses he identifies. He is denied tenure. He successfully appeals the denial, but the dean overrides the appeal. A professor involved with the tenure review later tells him that “the faculty had considered [the] accusations to have been false and malicious, but also said that the faculty would take no action, saying, ‘Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don’t want that.'” Second Circuit: We hold that Title IX allows faculty members to bring allegations of gender discrimination, and these allegations are more than sufficient.
• Pennsylvania will count your mail-in ballot if you write the wrong date on the envelope, but not if you write the date in the wrong place (or forget to write it at all). Third Circuit: Which is exactly the sort of picayune nonsense prohibited under the Materiality Provision of the Civil Rights Act.
• Philly cop pulls over black man riding a dirt bike, shoots and kills him as he runs away. The cop is charged with third-degree murder (charges remain pending). One of the investigating cops believes the charges to be unfounded and that prosecutors knowingly lied to the grand jury to get the indictment. Allegation: After finding out that the investigating cop wanted to expose her wrongdoing, one of the prosecutors retaliated by filing baseless criminal charges against him. Third Circuit (2020): Some of his claims may proceed. Third Circuit (2022): As we said, some of his claims may proceed. Prosecutorial immunity doesn’t protect the prosecutor from all of his claims.
• The Supreme Court has pretty clearly said that states can’t discriminate against interstate commerce—except, maybe, sometimes, if they’re regulating alcohol. Fourth Circuit (over a dissent): And this North Carolina law barring out-of-state retailers from shipping wine directly to consumers is maybe one of those times!
• In 2018, a state trial court ordered New Orleans to repay traffic fines it had illegally imposed. And so New Orleans . . . doesn’t? It just doesn’t pay. Which stinks, says the Fifth Circuit, but not everything that stinks violates the Takings Clause.
• Jasper, Tex. police arrested known drug user (who maybe ingested a baggie of drugs on his way to the jail) for public intoxication. Over the next 34 hours, his condition worsened; he vomits black liquid at least 3 times, cries out to officers at least 62 times, and moans in agony at least 70 times. Said one non-defendant officer: “I should have looked, but, you know, oh well.” Fifth Circuit: “[W]hether the officers refused [the detainee’s] requests, or merely disregarded them,” they violated his rights. No qualified immunity.
• The Tennessee Legislature does not like preachers ordained over the internet officiating weddings, so much so that in 2019 they amended the law to make it a felony punishable by up to six years in prison for an internet preacher to sign a marriage license knowing they were ineligible to do so. The Universal Life Church Monastery and several of its ministers sue. Sixth Circuit: And they have standing to sue at least a few of the defendants, so the case can go forward.
• In 2013, Kansas City, Mo. officer shoots, kills man suspected of cell phone theft (wrongfully it turns out). Police dept. to public: It was an armed standoff! The officer heroically saved fellow officers’ lives! Officer’s statement to police dept. right after the shooting: So, he wasn’t necessarily armed when I shot him, but I saw him with a gun moments earlier, and he ignored my orders to show his hands. Other officer on scene: He did not have a gun; he was complying with my orders; and I didn’t hear the first officer give any orders. Third officer: I didn’t see a gun either. Other witnesses: We didn’t see a gun. Man’s friend: The gun that the first officer says he saw was in fact in my car the whole evening; the deceased did not possess it at any point. Eighth Circuit: Assuming disputed facts in plaintiff’s favor, as we must at this stage of the case, qualified immunity for the first officer.
• In 2013, a U.S. citizen of Eritrean descent files a lawsuit challenging his inclusion on the No Fly List, which he claims occurred after he refused to act as a confidential informant to the FBI. Three years into the litigation, the gov’t informs the court he’s been removed from the list and moves to dismiss for mootness. Ninth Circuit (2018): That’s voluntary cessation; the case remains live. Feds: But we removed him from the list. Ninth Circuit: (2022): That’s. Voluntary. Cessation.
• Denver man sentenced to 48 years for a brutal rape and assault, after the victim identified him following a medicated dream in which she relived the attack. More than 20 years later, another man admits to having sex with the woman and beating her. The convicted man gets a new trial and is acquitted—exonerating him after 28 years in prison. (He gets $2 mil for the years he spent wrongfully locked up.) He sues, alleging a multitude of claims including malicious prosecution, destruction of good evidence, and creation of bad evidence. Tenth Circuit: No constitutional violations here.
• And in en banc news, the Sixth Circuit will not reconsider its recent precedent putting it on the side of a 4–4 circuit split that makes it somewhat less difficult for pretrial detainees to sue corrections officials for deliberate indifference—here a guard who allegedly turned a blind eye to plaintiff being labeled a snitch and beaten by other detainees. Dissentaling, Judge Bush asks the Supreme Court to step in.
• After Fort Worth, Tex. officer violently arrests family for “piss[ing him] off,” internal affairs officers recommend the officer be fired because he “made a false arrest, he lied in his affidavit and used excessive force.” Yikes! The IA officers are then put on detached duty and demoted; one is suspended for three days. (The offending officer was suspended for 10). Can they sue the city under Texas’s Whistleblower Act? Texas Supreme Court: Nope. Their recommendations weren’t a “report,” so the Act doesn’t apply. (Ed. note: As amicus, IJ is urging the Fifth Circuit to reconsider its grant of qualified immunity to the officer.)
• Charges against Alabama man accused of setting fire to his own property for the insurance payout are dropped after fire marshal admits the man did not actually confess, as the marshal had claimed. Can the man sue the marshal for malicious prosecution under state law? Alabama Supreme Court: Indeed! Since the suit is against the marshal in his personal rather than official capacity, sovereign immunity does not apply. (Click here for a discussion of the ruling, which, while heartening, probably doesn’t help Alabama’s grade of “F” for its immunity and accountability practices.)

In June 2020, René Quiñonez, an activist who owns a screen-printing company in Oakland, Calif., shipped a batch of boxes containing COVID-19 face masks with custom-print messages like “Stop Killing Black People” to customers around the country. But the masks did not arrive on time, and customers who put in their tracking number saw only this cryptic message: “Alert,” “Seized by Law Enforcement.” Which seriously hurt René’s business when the word got out and lots of his partnerships dried up. Eventually, and only after his congresswoman got involved, USPS officials gave an explanation: The seizure wasn’t because of the packages’ political content, but because they looked like they might contain illegal drugs. Which doesn’t make any sense because they were just plain brown boxes, no different from millions of other pieces of mail. So this week, René and IJ sued the USPS officials who seized and searched his mail without a warrant, probable cause, or reasonable suspicion. Click here to read more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Law enforcement in Kansas raked in $21 million through civil asset forfeiture over the past two years, according to a report released this week by the Americans for Prosperity Foundation (AFPF).

The report, drawing on a new state database, found that Kansas police seized $21.3 million from people in the state between July 2019 and the end of 2021. Of those cases, less than one-quarter of the owners have been convicted of a crime.

Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity without charging the owner with a crime. Law enforcement groups say it’s a vital tool to disrupt drug trafficking and criminal networks by targeting their illicit revenues. However, civil liberties groups, news outlets, and a broad spectrum of advocacy groups have published numerous reports over the years arguing that asset forfeiture lacks due process protections and often targets everyday people, rather than cartel lords. 

The AFPF report found that half of all reported seizures in Kansas had a value of $3,100 or less, meaning it would be impractical in those cases, if not a net loss, to hire an attorney to try and recover one’s property.

“Civil asset forfeiture laws imperil people’s rights to property and due process. This is especially true in states such as Kansas, where law enforcement receives all the proceeds from forfeited property,” AFPF-Kansas State Director Elizabeth Patton said in a press release. “The arrangement creates a compelling profit motive for law enforcement to seize people’s assets. Our analysis of the KBI data calls into question the motivation for most forfeiture activities in Kansas: to protect public safety or generate revenue?”

Take the 2017 case of Salvador Franco, a Las Vegas resident. After a drug dog alerted on Franco’s car, the Kansas Highway Patrol searched it. They didn’t find any drugs, but they did find $32,000 in cash under his seat. Franco said he was driving to St. Louis to buy a truck he’d been saving up for. The officers seized Franco’s cash, even though they never charged him with a crime.

More recently, sheriff’s deputies in Kansas and California colluded with the Drug Enforcement Administration to seize cash from armored cars operated by Empyreal Logistics, a company that serves state-licensed marijuana businesses. Reason‘s Jacob Sullum reported:

On May 17, Dickinson County Sheriff’s Deputy Kalen Robinson pulled over one of Empyreal’s vans on Interstate 70 in Kansas, ostensibly because the Colorado tag number was partially obstructed by the license plate frame. Robinson grilled the driver, who explained that she planned to pick up cash from licensed medical marijuana dispensaries in Kansas City, Missouri, the next day, then take it to a credit union in Colorado, which would entail traveling through Kansas again on the same highway. Robinson let the driver proceed on her way without issuing a citation, but the federal Drug Enforcement Administration (DEA) kept an eye on the van the following morning as it visited the Missouri dispensaries.

Later that day, Robinson stopped the van again as it traveled west on Interstate 70, seizing more than $165,000 in cash from its vault. In September, the Justice Department filed a civil forfeiture complaint seeking to keep the money. If the government prevails, the Dickinson County Sheriff’s Department will get up to 80 percent of the loot under the Justice Department’s “equitable sharing” program. 

After Empyreal sued, arguing that the marijuana dispensaries it served were all operating within state laws, the federal government agreed to return more than $1 million that police had seized. However, the settlement does not address the $165,000 seized by Kansas sheriff’s deputies.

The AFPF report notes that the numbers reported by Kansas omit more than $5 million that state and local police transferred to the federal government.

Under the Justice Department’s equitable sharing program, federal authorities may “adopt” state and local civil asset forfeiture cases and pursue them at the federal level. Local police departments who partner with the feds get to keep up to 80 percent of the forfeiture revenue, while the rest goes into the equitable sharing pool and is distributed among partner departments around the country. Critics of asset forfeiture say this essentially allows state and local police to bypass stricter state regulations.

Around 35 states have passed some form of civil asset forfeiture reform over the past decade, often by wide bipartisan margins, in response to outrageous stories of forfeiture abuse.

In 2018, Kansas enacted a law requiring police departments to report the date, location, and value of asset seizures, as well as whether or not criminal charges were filed in conjunction with the seizure. It also required police departments to start showing how they spend forfeiture revenues.

However, in April the Kansas Reflector reported that there were widespread errors in the required reports. “More than half of the law enforcement agencies have failed to report some of their seizures as required and have done so with the blessing of the Kansas Bureau of Investigation,” the news outlet found.

The post Kansas Seized $21 Million From People Over the Past Two Years. Most Were Never Convicted of a Crime appeared first on Reason.com.

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