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9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.
The post Today in Supreme Court History: September 14, 1901 appeared first on Reason.com.
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The post Review: The Brutality of British Monarchy on Display in <i>Legacy of Violence</i> appeared first on Reason.com.
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New Orleans city policy requires employees flying on city business to take the lowest airfare possible or to reimburse the city the difference if they upgrade. But so far this year, Mayor LaToya Cantrell has run up $29,000 in first- and business-class airfare costs above what it would have cost her to fly coach. She said the city policy does not apply to her, and she will not refund any of that money to the city. Cantrell said she flies first class because it is safer. “Anyone who wants to question how I protect myself just doesn’t understand the world black women walk in,” she said. Her aides fly coach.
The post Brickbat: Flying High appeared first on Reason.com.
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“Tech platforms are notoriously opaque,” the White House complained last week, saying Americans deserve to know more about how online forums decide “when and how to remove content from their sites.” Yet the Biden administration, which routinely pressures social media companies to suppress speech it does not like, is hardly a model of transparency in this area.
In a lawsuit filed last May, Louisiana Attorney General Jeff Landry and Missouri Attorney General Eric Schmitt argue that the administration’s “Orwellian” crusade against “misinformation” violates the First Amendment. They are trying to find out more about this “vast ‘Censorship Enterprise’ across a multitude of federal agencies,” and the administration is fighting them every step of the way.
So far, Landry and Schmitt have identified 45 federal officials who “communicate with social media platforms” about curtailing “misinformation.” Emails obtained during discovery show those platforms are desperate to comply with the government’s demands for speech restrictions, including the removal of specific messages and accounts.
On July 16, 2021, Joe Biden accused Facebook of “killing people” by failing to suppress misinformation about COVID-19 vaccines. That same day, a senior executive at the platform’s parent company emailed Surgeon General Vivek Murthy in an effort to assuage the president’s anger.
“Reaching out after what has transpired over the past few days following the publication of the misinformation advisory, and culminating today in the President’s remarks about us,” the Meta executive wrote. “I know our teams met today to better understand the scope of what the White House expects from us on misinformation going forward.”
Murthy had just published an advisory in which he urged a “whole-of-society” effort, possibly including “legal and regulatory measures,” to combat the “urgent threat to public health” posed by “health misinformation.” Biden’s homicide charge came the next day, and Meta was keen to address the president’s concerns by cracking down on speech that offended him.
Shortly afterward, Landry and Schmitt report, the same executive sent Murthy a text message. “It’s not great to be accused of killing people,” he said, adding that he was “keen to find a way to deescalate and work together collaboratively.”
And so he did. “Thanks again for taking the time to meet earlier today,” the Meta executive said in a July 23, 2021, email to the Department of Health and Human Services. “I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation.”
The executive bragged that Meta had deleted objectionable pages, groups, and Instagram accounts; taken steps to make several pages and profiles “more difficult to find on our platform”; and “expanded the group of false claims that we remove.” Other messages show that Twitter also was eager to fall in line.
Social media companies have a First Amendment right to exercise editorial discretion. But that’s not what is really happening when their decisions are shaped by implicit or explicit threats from the government.
The White House mentioned a few of those threats last week: “antitrust legislation,” privacy regulation, and “fundamental reforms” to the law that shields platforms from liability for content posted by users. Given the broad powers that the federal government has to make life difficult for social media companies, the administration’s “asks” for stricter moderation are tantamount to commands.
Federal officials expect obsequious compliance, and that is what they get. This largely surreptitious exercise in censorship by proxy, practiced by an administration that preaches transparency while practicing opacity, is especially troubling because it targets not only demonstrably false claims but also speech that the government considers “misleading” or contrary to the prevailing “consensus.”
Whether the subject is the origins of COVID-19, the effectiveness of face masks, or the newsworthiness of Hunter Biden’s laptop, that consensus often proves to be wrong. Both publicly and behind the scenes, federal officials are subverting the free inquiry and open debate required to reveal those errors.
© Copyright 2022 by Creators Syndicate Inc.
The post Biden's Sneaky Censors appeared first on Reason.com.
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Inflation continues to ravage America’s paychecks, and it’s increasingly showing up in rising rents.
The latest Consumer Price Index (CPI) by the Bureau of Labor Statistics (BLS) shows that prices ticked up by 0.1 percent for urban consumers in August, for an annualized increase of 8.3 percent for the year. The marginal increase in inflation comes in spite of fuel costs falling 10.3 percent last month.
“Increases in the shelter, food, and medical care indexes were the largest of many contributors to the broad-based monthly all items increase,” said the BLS in its news release today. The latest CPI numbers show a 0.7 percent increase in shelter costs in August and 6.2 percent over the past year.
The BLS measures both cash rents paid by tenants and something called Owners’ Equivalent Rent—a measurement of how much an owner-occupied home could be rented for. The bureau doesn’t include home prices in the CPI.
Spot rents reported by listing companies are growing at an even faster rate. Apartment List reports a 7.2 percent increase in rental prices so far this year. That’s moderate compared to the 17.6 percent increase in rents the company reported in 2021. It’s still well above pre-pandemic increases from 3.4 percent and 2.3 percent in 2018 and 2019 respectively.
Rents plunged during 2020, driven by an urban exodus from high-cost coastal metros like New York City, San Francisco, Los Angeles, and Seattle. Many of those same cities are where rents are growing the fastest—alongside many of the Sun Belt metros where people fled to during the pandemic.
That suggests at least a partial reset of migration patterns during the pandemic. People are returning to the city (although not necessarily to the office).
The upshot is that the country’s housing affordability struggles aren’t going anywhere. Some analysts warn that they’re likely to get worse.
“Rent prices look to accelerate in the near term as rental demand remains exceptionally high from ongoing job additions and higher mortgage rates forcing people out of the homebuying market,” Lawrence Yun, the National Association of Realtors chief economist, said in a statement to Barron’s.
Inflation is a monetary phenomenon driven by a lot of new money entering the system thanks to the federal government’s spending binge during and after the pandemic.
All else equal, new housing construction would help put downward pressure on housing costs. The odds of that happening are mixed. Multifamily housing construction is booming. Axios reports that 420,000 new apartments are supposed to be completed this year—a 50-year high.
But that explosion of new apartments is still coming after a decade of severe underbuilding. The latest federal data also show that single-family home construction is collapsing too.
In other words, rent is too damn high, and we can expect it to stay that way.
The post Latest Inflation Numbers Show That Rent Is Too Damn High appeared first on Reason.com.
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Even though two state judges have ordered Texas officials to stop initiating abuse investigations of families of trans youths while a lawsuit moves forward, those investigations are still happening, according to some new court filings.
In February, Texas Attorney General Ken Paxton put out a memo declaring that it’s considered possible child abuse worthy of potential prosecution if parents seek medical treatment like puberty-blocking drugs or hormones for trans kids. Gov. Greg Abbott subsequently ordered the state’s Department of Family and Protective Services (DFPS) to launch investigations, even if the trans kids, parents, and medical professionals were all in agreement with the line of treatment.
Investigations did indeed follow and parents quickly filed lawsuits, assisted by Lambda Legal and the American Civil Liberties Union of Texas to try to stop this harassment. There have been multiple injunctions by state district judges Amy Clark Meachum and Jan Soifer stopping investigations of the families involved in the lawsuits. But despite the individual injunctions, other families with trans youths continue to report that state officials are investigating, interviewing, and, according to parents involved, traumatizing trans kids.
Two additional families have come forward. In one case, a trans teen was pulled out of class and interrogated by officials asking personal questions, including probing him about a previous suicide attempt. For the second family, DFPS officials opened up an investigation of a student who was exploring “social transitioning,” asking to be called by they/them pronouns, and seeing a psychiatrist but not receiving any medical care. Under Paxton’s own guidelines, this student should not have been investigated in the first place. Yet, months after the state was told the student was not getting treatment, officials nevertheless demanded the mother show proof that “some third party confirm they are ‘well-adjusted.'”
The Austin American-Statesman explains that these new affidavits were gathered and submitted to Meachum as the judge considers a request to widen the injunction to protect more families from this investigation.
Remarkably, the response from Paxton’s office to the lawsuit has been to try to convince an appeals court to overturn the injunctions against the investigation on the grounds that the parents lack standing to sue. Even though Paxton’s office put out a memo that warned that “mandatory reporters” (like teachers and social workers) face potential prosecution if they don’t alert DFPS about trans youths, and despite the governor putting out a written order calling for DFPS to launch these investigations, Paxton argues it’s too soon for legal action to take place:
Texas Attorney General Ken Paxton has asked an appeals court to overturn Meachum’s injunctions, arguing in part that the families don’t have standing to sue because they complained of potential, not actual, harm. No transgender children have been removed from home and placed into foster care, and no parents have been placed on the state’s child abuse registry, his lawyers have argued.
That may be true. They’re just being dragged out of class and interrogated, and parents are being ordered to provide medical proof that their kids are “well-adjusted.”
It seems there is abuse going on here, and it’s by the state of Texas. Yes, the treatment of trans teens and youths with other gender issues is a complicated affair, and it is very natural to be worried about kids making permanent changes to their bodies and then regretting it. But liberty (and “parental rights“) calls for us to respect choices that other people’s families make with the assistance of medical staff they’ve chosen to associate with, even if they’re not the decisions we would make.
The post Despite State Injunctions, Parents Say Texas Is Still Investigating Trans Kids for Potential 'Abuse' appeared first on Reason.com.
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President Joe Biden’s recently unveiled student debt forgiveness proposal might just have an unintended consequence for residents of six states: an increased tax bill. While most states plan to follow the federal government’s lead and not treat one-time student loan forgiveness as taxable income, six states have no such plans. While Arkansas, Minnesota, West Virginia, and Wisconsin might decide to exempt federal student loan forgiveness from taxation, two states—Mississippi and North Carolina—have formal plans to tax loan forgiveness.
The results of this taxation could be an unexpected financial hit to many receiving loan forgiveness. According to Inc., depending on the state and the amount forgiven, individuals may see their taxes rise by $500 to $985.
However, according to Neal McCluskey, the director of the Center for Educational Freedom at the CATO Institute, low-income borrowers still stand to benefit in the long term from debt forgiveness.
“Typically, the people who are struggling the most with this debt actually have low debt, often below $10,000,” McCluskey tells Reason. “So I think they’ll be much better off for that debt having been forgiven even if it leads to some minor increase in their state taxes.”
McCluskey argues that the largest tax increases are likely to affect those Americans with larger student loan balances—a group that is disproportionately middle and upper-middle class. According to an Education Data Initiative report, the average student debt held by a borrower in the bottom quartile of yearly incomes was over $10,000 less than the average student debt held by a borrower in the third quartile of yearly incomes. The third quartile includes individuals making up to $121,318 a year and, thus, roughly comprises the upper reaches of eligibility for Biden’s loan forgiveness plan.
Though some borrowers may experience an unwelcome increase in their tax bill, it is probably fair for states to view students’ debt relief as taxable income.
While Biden has announced that this particular suite of loan forgiveness will not be taxed federally, the Education Department currently views forgiveness from income-driven repayment plans, a popular option for discharging loans, as taxable income. Indeed, other forms of debt forgiveness are, generally, regarded by the IRS as taxable income.
“I think what’s more objectionable is the idea that you get debt forgiven and it isn’t taxable income, which is what we’re seeing at the federal level. Because that money, those loans came from taxpayers to begin with.” McCluskey says. “You should be repaying your debt because you’ve taken it from people who actually have no choice whether or not you got it, and the agreement was you would repay.”
Not only would classifying student debt forgiveness as taxable income follow Education Department precedent, but it would also act as a slight penalty after what is otherwise a massive reward for a group largely experiencing the benefits of a college education.
“I think it’s sort of a second slap to taxpayers to say, ‘Not only have you not repaid the debt, but you won’t even pay taxes on essentially what was money given to you from taxpayers,'” McCluskey says. “The people with the biggest debt tend to be in the jobs with the highest lifetime income prospects. And the people who are really struggling to repay debt, maybe people who are in bankruptcy or something like that, they probably won’t pay very much [in taxes].”
The post Why Forgiven Student Loan Debt Should Probably Be Taxed as Income appeared first on Reason.com.
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Who watches the intellectual watchmen?
When it comes to historians, especially those purporting to tell the truth about the founding of America, the Civil War era, the Nobel Prize-winning economist James Buchanan, and the revered Austrian economist, Ludwig von Mises, it’s Phil Magness of the American Institute for Economic Research (AIER).
Magness has a Ph.D. from George Mason University’s school of public policy, and he’s written and co-written books on what he calls “the moral mess of higher education,” on Abraham Lincoln’s plan for black resettlement after emancipation, and on inaccuracies in The 1619 Project.
He has emerged as that offering’s most dogged critic, finding that the Pulitzer Prize–winning series, developed by Nikole Hannah-Jones, was quietly revised on the New York Times website after several prominent historians pointed out major errors in its analysis. Magness has also been a leading critic of Duke University historian Nancy MacLean, whose National Book Award-nominated Democracy in Chains attempted to brand the school choice movement as motivated by racism and white supremacy.
And he’s a critic of Hans-Herman Hoppe, a professor emeritus at the University of Nevada, Las Vegas and a distinguished senior fellow at the Mises Institute, who is increasingly influential within the Libertarian Party. “Hoppe has tried to invent this kind of carved-out counter-narrative while still claiming to be a representative of Mises that says we can use this propertian concept of the nation-state to exclude…immigrants from crossing the borders,” says Magness. “He gets the complete inversion of Mises’ thought.”
In June, Magness wrote an article for Reason that inspired an ongoing plagiarism investigation at Princeton University of Kevin Kruse, a high-profile, very online professor of history. “This is a guy that would tweet 100 or 200 times a day,” says Magness. “As soon as the word got out about plagiarism, he’s dropped off the face of the earth.” Indeed, Kruse’s Twitter feed has stayed silent since June.
Reason‘s Nick Gillespie caught up with Magness at FreedomFest, the annual gathering in Las Vegas, to talk about intellectual accountability in academia, journalism, and the libertarian movement.
*Correction: The video introduction incorrectly states that Nancy MacLean’s Democracy in Chains won the National Book Award-nominated. It was a finalist.
Interview by Nick Gillespie. Edited by Regan Taylor and Adam Czarnecki. Camera by Door Greene.
Photo Credits: Acroterion, CC BY-SA 4.0, via Wikimedia Commons; Beowulf Sheehan/ZUMA Press/Newscom; Economic Policy Institute; CC BY 4.0, via Wikimedia Commons; Dreamstine; Fotostand / Freitag/picture alliance / Fotostand/Newscom; Gage Skidmore; James Cridland, CC BY 2.0, via Wikimedia Commons; Richard B. Levine/Newscom; Slowking4, CC BY-SA 2.5, via Wikimedia Commons; Wittylama, CC BY-SA 3.0, via Wikimedia Commons.
Music Credits: “Divine Attraction,” (Instrumental Version) by A Seal to See, via Artlist.
The post Beyond The 1619 Project: Holding Academics and Journalists Accountable appeared first on Reason.com.
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From the Minnesota Court of Appeals’ majority opinion yesterday in State v. Trifiletti, written by Judge Randall Slieter and joined by Judge Matthew Johnson; the opinion is long, but here’s the legal heart of the matter:
Did the state prove that M.W.’s [a witness’s] possible exposure to COVID-19 and fully-dissipated-cough symptoms, which prevented her from testifying in person [at defendant’s April 2021 retrial], render her unavailable [so that her past testimony at an earlier trial could be introduced, or alternative that she could be allowed to testify by video, without violating a criminal defendant’s Confrontation Clause rights]?
M.W.’s possible exposure to COVID-19 without any symptoms of illness that prevents her from providing live, in-person testimony, does not satisfy any of the recognized circumstances rendering a witness unavailable. Therefore, she was available to provide live, in-person testimony. M.W. was willing to testify, she was physically and mentally able to testify, she was within the jurisdiction, and she remained in contact with the prosecutor.
The reason provided by the district court that M.W. was unavailable was its reasonable public-health concern for those in the courtroom who could potentially have been exposed to COVID-19. Our extensive review of the caselaw related to witness unavailability reveals no such public-health basis for admitting an unconfronted, testimonial statement against a criminal defendant. The district court erred by allowing the state to read her prior testimony into evidence. Therefore, Trifiletti’s Sixth Amendment right to confront the witnesses against him was violated….
Even if the law informed us that a witness is unavailable because of a possible exposure to COVID-19 and the resulting potential public-health risk to those in the courtroom if she were to testify in-person, the state did not meet its burden of showing that M.W. posed such a risk….
[T]here are no facts in the record which indicate that M.W.’s contact with her sister, who six days after M.W.’s contact tested positive for COVID-19, met this MDH definition of “close contact.” This absence of evidence related to M.W.’s possible exposure reflects an additional failure by the state to demonstrate that M.W. was a public-health risk if she was to testify in person, especially given the precautions the district court had already taken to conduct the trial safely during the pandemic.
In response to the COVID-19 pandemic, the chief justice imposed restrictions on in-person criminal trials that remained effective during Trifiletti’s trial. The district court, in compliance with the chief justice’s order, modified its courtroom so that everyone, including the jurors, were at least six feet apart and ordered everyone to be masked….
And Dr. Ogawa, a Ramsey County public-health official, indicated to the district court that it would be “reasonable” for M.W. to testify if she remained masked, notwithstanding her possible exposure to COVID-19. This supports the conclusion that M.W. was not a public-health risk if she testified in person. And additional review of the record indicates the state did not provide a preponderance of evidence that M.W. was unavailable due to a public-health risk….
We emphasize that the district court’s decision was based on the possibility that M.W. had contracted the virus from someone with whom she may have had “close contact,” and the possibility, if M.W. did actually contract the virus, that others in the courtroom and courthouse would be exposed to the virus if she were to testify in person. And there is nothing in the record indicating that M.W. took a COVID-19 test to confirm she had the virus and, instead, there is evidence that her doctor suggested she not take a test.
And though the district court emphasized that M.W. “should be in quarantine,” the state presented no evidence that M.W. was instructed to quarantine, or that she would have been in quarantine when she was to provide testimony. Further, we do not believe that her presence in quarantine would change our analysis because there was no medical information to identify and confirm M.W.’s health condition. Based on our de novo review, the speculative public-health risk that M.W. might pose if she was to testify in person fails to outweigh Trifiletti’s concrete Confrontation Clause right to confront his accusers.
We add that these circumstances did not limit the district court to a binary choice between live, remote testimony and reading M.W.’s former testimony…. [C]ourts consider a continuance [i.e., a delay of the trial] as the presumptive remedy for a witness’s temporary unavailability….
We acknowledge the very appropriate concern that the district court had for the well-being of all those in the courtroom during this trial, which was conducted during the COVID-19 pandemic. But “[g]overnment is not free to disregard the [Constitution] in times of crisis.” However appropriate and reasonable the district court’s concern, that concern must give way to Trifiletti’s constitutional right to confront the witnesses against him.
In sum, assuming the law informed us that a witness’s possible exposure to COVID-19 does render her unavailable, the state failed to prove by a preponderance of the evidence that M.W.’s in-person testimony posed a public-health risk. Therefore, in this case, the witness was not unavailable. Presenting her testimony from the first trial violated Trifiletti’s constitutional right to confront the witness….
And an excerpt from Judge Carol Hooten’s dissent:
The district court’s findings justify dispensing with face-to-face confrontation under the public-health exception that our court recognized in [a past case]. The district court found that the witness, M.W., had been “exposed in a close contact way with” a person who later “tested positive for COVID” on the eve of trial, and that M.W. and her son later developed symptoms consistent with COVID-19, such as a cough and congestion. The district court also found that another witness, S.S., was instructed by a healthcare professional to quarantine for ten days after encountering M.W.’s son. The district court considered the reported COVID-19 statistics and the publicly available guidance from the state’s health department and concluded that M.W. should be in quarantine. It recognized that a person may remain asymptomatic for up to 14 days after encountering a COVID-positive person before becoming sick and could spread the virus without ever experiencing symptoms.
The district court’s cautious conclusion that M.W. should not report to the courthouse reflects its responsibility to everyone in the courtroom—especially to the jurors, who are compelled by law to attend trial. The district court’s finding that M.W. is particularly susceptible to the virus and its conclusion that she is unavailable conforms to our decision in Tate. I would not disregard the district court’s reasoned judgment or conclude that the district court clearly erred in its findings….
Congratulations to Anders J. Erickson, Assistant Public Defender, who represented the defendant.
The post The Constitutional Right to Confront Witnesses Against You, When They've Been Exposed to COVID appeared first on Reason.com.
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From Magistrate Judge Reid Neureiter’s Report and Recommendation yesterday in Huff v. City of Aurora (D. Colo.) (the ultimate decision will be in the District Judge’s hands, though such Magistrate Judge Reports and Recommendations are generally quite influential):
This lawsuit arises from an incident that occurred on October 10, 2019 at the Aurora home Mr. Huff shared with his wife, young daughter, and brother, George. That day, a man named George Bejar-Gutierrez, whom the brothers allowed to stay at the residence, stole George Huff’s vehicle to drive to a methadone clinic. When Mr. Bejar-Gutierrez eventually returned, he was under the influence of methadone and George Huff’s car was damaged. A confrontation, initiated by Mr. Bejar-Gutierrez, ensued, which prompted a passerby to call 911. Officers Doorgeest, VanDyk, and Vaughan of the Aurora Police Department (“APD”) were dispatched to the scene, where they met with the Huff brothers, who explained what had happened. The officers informed the brothers that neither would be charged with any crime, and Andrew Huff gave them his cell phone number for any future communications.
Mr. Bejar-Gutierrez, who had fled before officers arrived and then proceeded to threaten the Huff brothers throughout that day and into the evening, eventually placed his own call to the APD, and met with Officers Ord, Marrero, and Oviatt at around 7:00 p.m. at a different Aurora residence. Mr. Bejar-Gutierrez told these officers that the Huff brothers assaulted him and that Andrew Huff had a firearm. Mr. Huff alleges that Mr. Bejar-Gutierrez was a convicted felon who had previously been arrested for giving false information to the APD.
At 11:30 p.m., Officers Ord, Marrero, and Oviatt, without any advance notice to Mr. Huff, went to Mr. Huff’s home. They parked around the corner and, wearing all black clothing, proceeded to “creep” through neighboring yards towards Mr. Huff’s residence. When Mr. Huff, who was smoking outside, saw these unidentified individuals advancing upon his home, he believed that Mr. Bejar-Gutierrez was following through on his earlier threats. He ran inside and retrieved a shotgun. He was facing the window with both hands by his side. His left hand held the shotgun by the barrel—his finger was not on the trigger and the gun was pointed at the ceiling. About 30 feet away, Officer Ord drew his weapon and, as he yelled, “Put your hands up, put your hands up!”, fired five shots at Mr. Huff. Mr. Huff, who was diving away from the window as Officer Ord opened fire, was shot in rectum and severely injured. Another round entered the room where his daughter lay sleeping.
Officer Ord attempted to justify his actions by exclaiming that Mr. Huff “came into the window with a gun,” and afterwards stated, “They are racking up in the garage,” when, in fact, Mr. Huff, bleeding profusely on the floor, was merely calling 911 for help. Mr. Huff was charged with multiple felonies, all of which were ultimately dismissed. The second is a claim for municipal liability brought against the City for its allegedly unconstitutional policies, practices, and customs.
The Magistrate Judge reasoned that Huff had adequately stated a Fourth Amendment claim:
“To state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a seizure occurred and that the seizure was unreasonable.” “[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” In assessing an excessive force claim under the Fourth Amendment, “the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” The inquiry “requires careful attention to the facts and circumstances of each particular case.” In conducting this analysis, the Court must “consider the factors the Supreme Court clearly set forth in Graham v. Connor.” These three factors are “(1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.'” …
The first Graham factor, “the severity of the crime at issue,” is inconclusive at this stage.
Understandably enough, the Amended Complaint does not state what Mr. Bejar-Gutierrez told officers when he met with them on the evening of October 10, 2019, beyond, “George Bejar-Gutierrez claimed that the Huff brothers had assaulted him earlier in the day and claimed that Plaintiff had a firearm.” It is unknown whether Mr. Bejar-Gutierrez described a felonious assault, i.e., that he suffered serious bodily injury at the hands of the Huff brothers or that a deadly weapon was used. Unhelpfully, in his motion, Officer Ord argues that he and the other officers were investigating Mr. Huff for assault, “which could have been considered a felony in the state of Colorado.” Officer Ord is more definitive in his reply; he says that Mr. Bejar-Gutierrez reported a “felony assault.” This incongruity is left unexplained, but it can and should be explored in discovery.
What Mr. Huff does allege, and what the Court must accept as true, is that the officers waited four hours after the alleged assault was reported to attempt to contact Mr. Huff. Officer Ord suggests that it is reasonable for police to take the time and prepare for a safe approach of an armed suspect. While the Court does not discount this argument, the delay could equally imply that the officers did not believe that exigent circumstances existed such that their later actions—waiting until almost midnight; parking around the corner; “sneaking” through the neighbors’ yards; silently taking positions around the front of the house; all while not identifying themselves—were justified.
Moreover, what “preparations” the officers were taking during this time is relevant. Did they check the criminal records of the parties? Did they check whether Mr. Huff’s firearm was registered? Did they bother to inquire whether there were prior reports from the parties that had previously been investigated by other officers the same day? Did they see that the brothers had been cleared of wrongdoing by their fellow officers? These are issues to be developed during discovery….
The second Graham factor, “whether the suspect pos[ed] an immediate threat to the safety of the officers or others,” “is the ‘most important’ and fact intensive factor in determining the objective reasonableness of an officer’s use of force.”
“A frequent concern of the courts is the use of deadly force—that is, ‘force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily harm.'” The Tenth Circuit has set forth four nonexclusive factors to consider when assessing the seriousness of a threat that precipitated an officer’s use of deadly force: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” …
The first Larsen factor goes to “whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands.” Mr. Huff alleges that the officers did not identify themselves at any time prior to the shooting and that Officer Ord fired his weapon at the same time as he shouted, “Hands up!” “The Supreme Court has said that ‘deadly force may be used if necessary to prevent escape [of one who threatens an officer with a weapon], and if, where feasible, some warning has been given.‘” Taking the allegations of the Amended Complaint as true, Mr. Huff was never informed that he was dealing with police officers, much less that deadly forced might be used. Given that “the failure to warn when feasible and without excuse is so fundamental that it is often dispositive,” this factor weighs in favor of Mr. Huff.
The second Larsen asks “whether any hostile motions were made with the weapon towards the officers,” and likewise weighs in favor of Mr. Huff. According to the Amended Complaint, Mr. Huff did not point his weapon at anyone; he held the shotgun by its barrel and it was pointed at the ceiling. Nor did he ever fire the weapon. Officer Ord argues that “Plaintiff’s appearance at the front window with a shotgun in his hand was, by itself, hostile in nature.” But given that there is no “per se rule of objective reasonableness where a person points a gun at a police officer,” the mere possession of a weapon does not, by itself, justify the use of deadly force. Possession of a firearm in one’s home is also a constitutionally protected right and is not unlawful absent some disqualifying characteristic, such as being a felon.
The third Larsen factor, “the distance separating the officers and the suspect,” supports Officer Ord. Though Officer Ord allegedly fired from some 30 feet away, Mr. Huff was apparently much closer to the officer knocking on the door, which intensifies the immediacy of danger, although the exact layout the property is unknown at this time.
The fourth Larsen factor, “the manifest intentions of the suspect,” weighs in favor of Mr. Huff. Under the circumstances described in the Amended Complaint, Mr. Huff’s “manifest intentions” were not to harm officers but to protect himself and his family from someone who had physically confronted him earlier that day and then made threats return to the property. Mr. Huff had no reason to believe he would be contacted by police officers given his earlier cooperation. And Officer Ord and his fellow officers’ failure to identify themselves and their “covert” approach to the home served to reinforce Mr. Huff’s belief that he was in danger. Under this version of events, “it was no surprise” that Mr. Huff armed himself “because it was [his] constitutional right to do so.”
On balance, then, … [t]he Amended Complaint plausibly alleges that it was unreasonable for Officer Ord to believe that Mr. Huff posed a grave threat of danger to himself or anyone else. Officer Ord is free to raise this “fact intensive” issue again on summary judgment, after discovery….
The third Graham factor, “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight,” weighs of favor of Mr. Huff. According to Mr. Huff, he had fully cooperated with APD officers that very day, going so far as to give them his cell phone number in case they had follow up questions. When Officer Ord and the other officers arrived at Mr. Huff’s house, they did not tell Mr. Huff that they were police officers or that Mr. Huff was being arrested. Mr. Huff “couldn’t have been resisting an arrest if he hadn’t even been told that he was being arrested.” …
The Magistrate Judge also reasoned that the officer wasn’t entitled to have the case dismissed under qualified immunity, because, if the facts are as Mr. Huff alleges, the officer’s actions were clearly unconstitutional:
The Court agrees with Mr. Huff that the Tenth Circuit’s opinion in Pauly v. White put Officer Ord on notice that shooting into Mr. Huff’s and hitting Mr. Huff violated the Constitution. In Pauly, Samuel Pauly was shot through the window of his home by Officer White, a state police officer who was investigating an earlier road rage incident involving Samuel’s brother, Daniel Pauly. Three officers, including Officer White, arrived at the house after 11:00 p.m. in the month of October. The officers approached and surrounded the residence without activating their security lights, which “confused and terrified” the brothers, who feared they could be intruders related to Daniel’s prior road rage altercation. The officers told the brothers to come outside but did not clearly identify themselves.
Samuel armed himself with a loaded handgun and gave Daniel a shotgun and ammunition. One of the brothers shouted, “We have guns,” and Daniel fired two warning shots out of the back door. Samuel opened the front window and pointed a handgun at Officer White, who then fired from behind a stone wall 50 feet away….
Officer Ord argues that Pauly is distinguishable in several ways, the most important distinction being that he gave Mr. Huff a warning to put his hands up. However, as noted above, the Amended Complaint alleges that the warning came as Officer Ord started shooting. If true, this effectively means that no warning was given at all.
Officer Ord also points out that “the plaintiffs in Pauly did not flee approaching officers.” But, like the Pauly brothers, Mr. Huff did not know, and had no reason to know, that the people approaching his house were law enforcement officers. Instead, both Mr. Huff and the Pauly brothers feared intruders, and Mr. Huff’s fear was rational given the threats he received from Mr. Bejar-Gutierrez earlier that day.
Officer Ord also states the Pauly shooting occurred in a rural, rather than urban, setting, and the “confrontation between the brothers and officers lasted for a “significant amount of time” before Samuel Pauly was shot. Neither argument is persuasive. It appears that only 3-4 minutes had elapsed from the time that Officer White arrived at the Pauly residence and the final shot was fired. This is hardly a “significant amount of time,” especially considering that the Court has nothing to compare it to here, temporally speaking; the Amended Complaint only alleges that “Officer Ord started shooting at Plaintiff approximately two seconds after seeing him standing non-threateningly in his window.” Moreover, whether urban or rural, both cases involved individuals who were shot while standing back-lit in their front windows….
And the Magistrate Judge also concluded that municipal liability was possible here, because Huff “has sufficiently alleged that the City failed to train Officer Ord in the use of appropriate force when confronted with individuals exercising their Second Amendment right to keep bear arms in their homes, and that the City’s final policymakers ratified Officer Ord’s allegedly unconstitutional use of deadly force”:
Mr. Huff alleges here that “[n]ot only does Aurora have absolutely no training on shooting into residences or encounters with homeowners exercising Second Amendments rights, but it has also almost zero training on avoiding unnecessary escalation, and deficient training on proportional constitutional use of force.” If true, this demonstrates the APD’s deliberate indifference to its citizens’ constitutional rights, especially given how many American homeowners—exercising their well-established Second Amendment rights—legally own and possess firearms. Accordingly, at this early stage, Mr. Huff’s Amended Complaint plausibly states a claim against the City under a failure to train theory….
According to Mr. Huff, APD Chief Paul O’Keefe publicly supported Officer Ord after the shooting, stating that Officer Ord complied with APD policy and did nothing wrong. Mr. Huff further notes that former APD Chief Nick Metz publicly backed the officers who shot and killed Mr. Black in 2018. No officers were disciplined in either case. Mr. Huff argues that this amounts to ratification and is evidence of the APD’s unconstitutional policy of shooting at homeowners lawfully exercising their Second Amendment rights….
Chief O’Keefe’s failure to discipline Officer Ord after shooting Mr. Huff cannot, on its own, plausibly form the basis of municipal liability on a ratification theory. However, … “[a] failure to investigate or reprimand might also cause a future violation by sending a message to officers that such behavior is tolerated.” That is what Mr. Huff alleges here. He claims that after police shot and killed Mr. Black in his home, then-Chief Metz publicly stated the officers did nothing wrong and none of them were disciplined. Then, Chief O’Keefe, after “carefully review[ing] and analyz[ing] Officer Ord’s decision to shoot Plaintiff,” under circumstances similar to those that resulted in Mr. Black’s death, likewise determined that the officer’s actions were in line with APD policy. If the City’s final policymakers took affirmative steps to not merely condone but also commend the allegedly excessive and unconstitutional use of deadly force by APD officers, this deliberate conduct may be enough to establish the existence of an official informal policy, whatever the formal written policy may provide….
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