Tag: in-the-news

David Lat answers the questions we all want to know. At his excellent Substack site, David breaks down which Circuit Judges and Circuit Courts have fed the most Supreme Court clerks over the past five years. (If you haven’t subscribed, you should).

There is a five-way tie for first place between Judges Sutton, Pryor, and Kavanaugh. Each has 13. It is impressive that Kavanaugh is still feeding clerks, since he left the D.C. Circuit nearly three years ago. Sutton and Pryor are giants. Columbus and Birmingham are not exactly the most desirous places for law school grads to clerk–I very much like both cities–but these two jurists have built judicial fiefdoms in their backyards. Kudos to them.

There is a two-way tie for second place between Judges Katzmann and Srinivasan. Each has 12. Judge Katzmann passed away, so his totals will likely decline in the future. At this point, Judge Srinivasan is the undisputed Democratic SCOTUS feeder. It’s not even close. Though with only three Democratic Justices, it will be hard to keep up these numbers. RBG’s four seats will now be filled by ACB.

Judge Griffith is in sixth place with 10. He retired from the D.C. Circuit, so his totals should drop in time.

There is a four-way tie for seventh place between Katsas, Thapar, Wilkinson, and Garland. Each has 9. Katsas’s numbers are really impressive, as he was only appointed to the Court in December 2017. If we assume Katsas has four clerks per year, he has had (roughly) 16 law clerks. More than half of them clerked on the Supreme Court. Wow! Judge Thapar’s rank is also impressive. He was only elevated to the Circuit Court in 2017, but many of his district court clerks went onto higher office. Judge Wilkinson has been a judge for nearly 40 years. The fact that he only has nine SCOTUS in the last five years suggests his impact is slipping. Then there is former-Judge Garland, who I’ve called the Susan Lucci of the Supreme Court. (The closest he’ll get to One First Street will be when he argues a softball case as AG). Garland only had 9 clerks. But then again, he gets to install his favorite clerks in top executive branch positions. Just this week, Biden nominated Garland clerks as SG (Elizabeth Prelogar) and U.S. Attorney for SDNY (Damien Williams).

Finally, there is a four-way tie for eleventh place. Judges Kethledge, O’Scannlain, Rakoff, and Tatel. Each has 8. Judge Tatel has taken senior status, but his influence should remain constant if he keeps a full complement of clerks. (We still do not have a nominee for his seat). District Judge Rakoff often fed clerks to Katzmann. That pipeline is now gone. Judge O’Scannlain has been on senior status for nearly five years, but he is still feeding his fair share to the Court. Judge Kethledge, the other Kennedy clerk who could have filled the vacancy, rounds out the Sixth Circuit’s dominance.

David Lat also calculated how many SCOTUS clerks each circuit fed to the Supreme Court. I think the most useful measure is “clerks per authorized judgeship.”

The D.C. Circuit is far and ahead in the lead with almost 7 clerks per each authorized judgeship. Kavanaugh, Srinivasan, Griffith, Garland, Katsas, and Tatel were all-stars. But three of those judges are now off the Court. Given the  hard-left turn, it is unclear if the D.C. Circuit can maintain its supremacy. I don’t know how many Millett and Pillard clerks will get hired by the new Roberts Court. Judges Rao and Walker can make up some of that deficit.

The Second Circuit is in second place with 2 clerks per authorized judgeship. Alas, with Judge Katzmann off the Court, is unclear who else can rise to that occasion. Perhaps Judges Park and Menashi.

The Sixth Circuit is in third place with 1.88 clerks per judge. Very soon, the Sixth Circuit should overtake the Second Circuit. And in 5 years or so, it may give the depleted D.C. Circuit a run for supremacy. Judges Sutton, Thapar, and Kethledge are in their prime.

The Eleventh Circuit is in fourth place with 1.75 clerks per judge. Judge Pryor is leading the pack by himself, though Judges Grant and Newsom may start to climb the ranks.

After fourth place, the numbers drop off steeply. My, how the Ninth Circuit has fallen. Reinhardt is gone. Kozinski is gone. And the Obama nominees will have little cache with the conservative court. The Tenth Circuit only made the list because of then-Judge Gorsuch. It should drop off soon. My home circuit, the Fifth, is really slacking. Thankfully, some of the new Trump appointees will move up the line: Ho, Willett, Oldham, Duncan, and others.

There are three circuits missing from this list altogether: the First, Third, and Eight Circuits. I can’t think of any recent appointees to those courts that could alter the balance. It’s sad that SDNY and DDC produced more SCOTUS clerks than three courts of appeals. But there it is, we have a huge imbalance.

Thanks for David for running the numbers.

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It can be tough to grasp the idea that a driver isn’t just in traffic; he is traffic. As a result, a lot of people think policies to reduce traffic congestion should apply to someone else over there.

Witness a bipartisan bill from two New Jersey congressmen, Democrat Josh Gottheimer and Republican Jeff Van Drew. It would strip New York City’s public transit system of federal funding if Garden State drivers aren’t exempt from the congestion charges that might soon be applied to motorists entering Manhattan.

“The proposed $3,000 a year congestion tax is such a slap in the face to New Jersey commuters,” said Gottheimer in a press release announcing the reintroduction of the Anti-Congestion Tax Act. “We’re fighting back against the proposed New York congestion taxes that are targeting hardworking Jersey families for simply driving into Manhattan.”

The “congestion tax” being targeted is a variable fee that New York will soon charge motorists who enter Manhattan below 60th Street. The idea is to reduce traffic congestion by encouraging carpooling, transit use, or travel at off-peak hours.

How much these charges will be, how they might vary throughout the day, and who exactly will have to pay them are decisions that will be made by the Metropolitan Transportation Authority (MTA)—the state agency that runs buses and trains in the New York City area.

The MTA will also receive these congestion tolls. The money will then go toward capital improvements for mass transit in New York City and on MTA-run commuter rail lines running out to Long Island and Connecticut.

Such congestion pricing (or cordon pricing) schemes are already in place in a number of cities, including London, Singapore, and Stockholm, where they’ve proven successful at reducing traffic congestion in the city center. New York would be the first city in the U.S. to implement the policy.

The idea has support from transportation experts of all ideological stripes. Left-wing transit advocates like its potential to encourage transit ridership. Free market wonks like the idea of pricing roads to speed up commute times.

This bill has something for both groups to hate.

Transit advocates have obvious reasons to oppose its provision forbidding grants from the feds’ Capital Investment Program to the MTA unless drivers entering Manhattan from New Jersey are exempt from tolls. That would take billions away from the MTA-sponsored projects, either by cutting off federal funds or by forcing them to forgo the revenue they would have gotten from New Jersey motorists.

Folks who support congestion pricing but are less hot on federal transit funding will dislike a provision giving commuters a tax credit to cover whatever congestion tolls they pay entering Manhattan from New Jersey. That would eliminate their incentive to, you know, reduce congestion.

Gottheimer first introduced this bill in 2019, the same year the New York legislature created its congestion pricing program. Around the same time, everyone from truckers to police to representatives of New York’s outer boroughs started pushing for their own targeted exemptions. It’ll be a while before we know the precise details of who will actually receive those exemptions.

New York’s program was supposed to be up and running by January 2021. The need to conduct a federally mandated environmental review of the program, and the political wrangling that came with that, ensured that deadline was missed. The hope now is to have a toll system up and running by 2022.

If it’s successful at reducing traffic and speeding up travel times, New York City’s congestion pricing scheme could be a model for other gridlocked American cities to emulate. Exempting all New Jersey commuters would ensure it becomes a cautionary tale of what not to do.

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For years, St. Paul police officer Heather Weyker was swamped. She gathered evidence, cultivated witnesses, filled out the police reports, testified under oath—all in connection with an interstate sex trafficking ring run by Somali refugees. But perhaps most impressive is that she did all that while fabricating the same ring she was investigating, which resulted in 30 indictments, 9 trials, and 0 convictions.

Hamdi Mohamud, then a 16-year-old Somali refugee, found herself caught up in that scheme in 2011, when one of Weyker’s witnesses, Muna Abdulkadir, tried to attack her and her friends at knifepoint. Mohamud called the police, and Weyker intervened—on behalf of Abdulkadir. She arrested Mohamud and her friends for allegedly tampering with a federal witness, and Mohamud subsequently spent two years in jail before the trumped-up charges were dismissed.

While Mohamud lost those two years of her life, Weyker has not paid any price—not in spite of her position, but because of it. Since the officer conducted her investigation as part of a federal task force, she is entitled to absolute immunity and cannot be sued, the U.S. Court of Appeals for the 8th Circuit ruled last year.

It’s not because the “sex trafficking” investigation—which consisted of Weyker conjuring fake information, editing police reports, fabricating evidence, and lying under oath, among other things—was legitimate. On the contrary, the court says it was “plagued with problems from the start” and notes that Weyker employed “lies and manipulation” to put people behind bars. Legally speaking, none of that matters.

What does matter is a line of Supreme Court jurisprudence that has made suing a rights-violating federal officer almost out of the question. Had Weyker acted in her capacity as a state or local cop, Mohamud would have been permitted to bring her claim before a jury of her peers. Yet the most powerful officers are held to the lowest standard of accountability.

Mohamud hopes to change that standard by asking the Supreme Court to hear her case, which she made official last week.

The problem here isn’t qualified immunity, the doctrine that shields police officers and other state actors from federal civil suits unless the way the government violated your rights has been litigated almost exactly in a prior court precedent. That’s an onerous standard to meet. It has, for example, protected two police officers who allegedly stole $225,000 while executing a search warrant, because no prior court ruling had said stealing in those circumstances is unconstitutional. The legal principle has been at the center of criminal justice reform efforts over the last year.

But Mohamud cleared that hurdle. The United States District Court for the District of Minnesota ruled that Weyker’s actions so clearly made a mockery of the Constitution that she could not skirt the suit. The 8th Circuit then overturned that decision on appeal, citing Weyker’s temporary federal badge, while in the same breath acknowledging the depravity of her actions.

“Qualified immunity makes it very, very difficult to sue government officials,” says Patrick Jaicomo, an attorney at the Institute for Justice, the libertarian public interest law firm representing Mohamud. “This makes it impossible.”

There’s a Supreme Court decision that should, in theory, give Mohamud the avenue to redress she needs. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the high court allowed a victim to go before a jury after federal cops conducted a drug raid on his apartment without a warrant and later strip-searched him at the courthouse.

But since then the Court has undermined its own decision in almost comical ways. In 2017, the justices ruled in Ziglar v. Abbasi that lower courts should pinpoint “special factors counseling hesitation” when considering suits against federal cops. In practice, that has meant just about whatever a judge can cook up.

Yet even Abbasi notes that Bivens should be applied robustly for Fourth Amendment claims, and Mohamud’s suit rests on the Fourth Amendment. That has been lost on the 8th Circuit.

“Bivens is actually a great decision,” says Anya Bidwell, another attorney for Mohamud. “It does provide a cause of action for a violation of Fourth Amendment rights. We want Bivens to be interpreted robustly and allow individuals to seek damages for violations of constitutional rights.”

Whether or not the Supreme Court will clarify its oscillating guidance remains to be seen. But the justices may have given a hint about where they’re leaning last year, when they unanimously ruled that a group of Muslim men should have the right to sue a group of federal cops who violated their religious freedom rights. Jaicomo distills Justice Clarence Thomas’s opinion in that case down to its core: “He [essentially] says the availability of damages against federal officers is as old as the Republic itself.”

A decade after wrongly losing the end of her teenage years in jail, Mohamud has not yet been able to make use of that lever against the perpetrator, who is still employed by the St. Paul Police Department. “It simply makes no sense that the Fourth Amendment applies with less rigor for someone who happens to work for the federal government,” says Bidwell. “This is unsustainable. It just makes no sense.”

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“U.S. population is much more multiracial and more diverse than what we measured in the past,” said Nicholas Jones, the Census Bureau’s director of race and ethnicity research, in a press release today.

According to last year’s census data, whites remain the country’s largest racial or ethnic group. About 204.3 million people described themselves as white without also identifying with another group. (Another 31.1 million Americans identified both as white and with another group.) Still, the population identifying as white alone decreased by 8.6 percent since the previous census in 2010.

America’s second largest ethnic group? People who either picked multiple racial boxes or checked “Some Other Race.” These folks now number 49.9 million—surpassing the African-American population, which now stands at 46.9 million.

The fact that more Americans are checking multiracial census boxes tracks the steady increase in racial and ethnic group intermarriages over the past 50 years.

America’s Hispanic population, which includes people of multiple races, now stands at 62.1 million. About 24 million people described themselves as Asian (either alone or in combination with another group), 9.7 million as American Indian or Alaska Native (alone or in combination), and 1.6 million as Pacific Islanders (alone or in combination).

The total U.S. population grew at the lowest rate since the Great Depression, rising from 308.7 million in 2010 to 331.4 million, a 7.35 percent increase.

More Americans became urbanites, with 52 percent of the country’s countries losing population from 2010 to 2020.

Already-big metropolitan areas tended to get bigger, while smaller cities tended to decline in population.

The Census Bureau defines metropolitan areas as counties that contain a city with at least 50,000 residents; micropolitan areas have between 10,000 and 50,000 people. A full 81 percent of U.S. metropolitan areas increased their populations from 2010 to 2020, but only 48 percent of U.S. micropolitan areas grew over the decade.

Three states—West Virginia, Mississippi, and Illinois—lost population, as did Puerto Rico.

The point of the decennial national census is to figure out how many members of the House of Representatives will be allocated to each state.

As result of these population shifts, New York, Pennsylvania, West Virginia, Ohio, Michigan, Illinois, and California will each lose one representative. The congressional delegations from Oregon, Montana, Colorado, Florida and North Carolina will each grow by one, and Texas will gain two.

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From City of Seattle v. Long, decided today by a largely unanimous Washington Supreme Court (in an opinion by Justice Madsen):

In 2016, Long was living in his truck. Long, then a 56-year-old member of the Confederated Salish and Kootenai Tribes of the Flathead Nation, worked as a general tradesman and stored work tools as well as personal items in his vehicle. One day, Long was driving to an appointment when the truck began making “grinding” noises. On July 5, 2016, Long parked in a gravel lot owned by the city of Seattle. Long stayed on the property for the next three months.

On October 5, 2016, police alerted Long that he was violating the SMC by parking in one location for more than 72 hours. Long claims he told the officers that he lived in the truck. Later that day, a parking enforcement officer posted a 72-hour notice on the truck, noting it would be impounded if not moved at least one city block. Long did not move the truck. While Long was at work on October 12, 2016, a city-contracted company towed his truck. Without it, Long slept outside on the ground before seeking shelter nearby to escape the rain and wind.

Long requested a hearing to contest the parking infraction. At the November 2, 2016 impoundment hearing, Long reiterated that he lived in his truck and kept all of his work tools in it. The magistrate found that Long had parked illegally, but the magistrate waived the $44.00 ticket, reduced the impoundment charges from $946.61 to $547.12, and added a $10.00 administrative fee. The magistrate drafted a payment plan requiring Long to pay $50.00 per month. Long felt “forced” to agree or risk losing his truck at a public auction….

A “uniquely American contribution” to real property law, homestead exemptions are based on the notion that citizens should have a home where family is sheltered and living beyond the reach of financial misfortune and the demands of certain classes of creditors. States began enacting homestead laws in the 19th century in order to provide security in an increasingly volatile American economy…. Washington’s constitution provides, “The legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.” …

[We conclude that] RCW 6.13.040(1) automatically protects occupied personal property as a homestead, and no declaration is required. Long’s truck therefore constitutes a homestead. However, we agree with Seattle that no attachment, execution, or forced sale occurred. The homestead act protections were not triggered at this point in Long’s case because no party sought to collect on Long’s debt….

Long also seeks relief under the state and federal excessive fines clauses…. Absent support [in the briefing] for an independent analysis, we view article I, section 14 and the Eighth Amendment as coextensive for the purposes of excessive fines….

Under the Court’s precedent, the impoundment of Long’s truck was partially punitive and constitutes a fine. [Details omitted. -EV]

Next, we consider whether the fines were excessive. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” …

Critical to the present case is whether this proportionality inquiry can or should include consideration of a person’s ability to pay…. The Magna Carta—from which the Eighth Amendment descended—limited the government’s power to impose punitive fines by, in part, forbidding penalties “so large as to deprive [a person] of his livelihood.” English freemen could be amerced only in such a way as to save “‘to him his contenement'” [freehold land held by a feudal tenant, especially land used to support the tenant], a merchant “his merchandise,” and a serf his “wainage” [the plow, team, and other implements used by a person ([especially] a villein) to cultivate the soil or the cultivated land or the profits from it.”

Across the pond, the Virginia Supreme Court of Appeals explained that its excessive fines clause reflected the traditional understanding that any “fine or amercement ought to be according to the degree of the fault and the estate of the defendant.” Jones v. Commonwealth (Va. 1799) (emphasis added). Thomas Cooley’s esteemed [1868] constitutional treatise stated that the excessive fines provision requires a fine to “have some reference to the party’s ability to pay it.” Nineteenth century lawmakers appear to have accepted this traditional understanding. [Details omitted. -EV]

A number of modern state and federal courts have joined the chorus of legal scholars to conclude that the history of the clause and the reasoning of the Supreme Court strongly suggest that considering ability to pay is constitutionally required. [Details omitted. -EV] …

Further, this court has recognized that punitive fines should not be sought or imposed as “a source of revenue.” It has been said that “offender-funded justice” comprises much of the funding for criminal justice across the country, including traffic and parking violation fines. Courts scrutinize “governmental action more closely when the State stands to benefit.” Including an ability to pay inquiry for an excessive fines claim allows courts to do just that….

Our gross disproportionality test considers ” ‘(1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused,’ ” as well as a person’s ability to pay the fine. In light of these factors, we conclude that the impoundment and $547.12 payment plan were unconstitutionally excessive.

First, the nature of the offense at issue is a civil parking infraction that carries a $44 fine. The city certainly has an interest in keeping its streets clear and free of traffic, but the offense of overstaying one’s welcome in a specific location is not particularly egregious. Moreover, the city has suspended enforcement of the 72-hour parking violation during COVID-19, signaling that the city views it as a relatively minor offense.

Second, there is no evidence that the infraction was related to any other criminal activity.

Third, the only penalty identified is the $44 ticket and towing/storage costs. In this case, the magistrate waived the ticket and reduced the associated costs from approximately $900 to $550. If Long fell behind on payments, he would be subject to additional penalties in the form of late charges and collection efforts. Fourth, the extent of the harm caused was minimal. As the superior court noted, Long was not parked in an area of “very hot demand for city vehicles or otherwise.” He was not parked in a residential neighborhood, and as noted, he was not cited for blocking or obstructing a roadway.

On the other hand, the city was harmed when it paid the costs of towing and impoundment. Seattle leans heavily on the notion of reimbursement as evidence that the payment plan is not excessive because “[t]he government is entitled to rough remedial justice.” … [But] “rough equivalence of the value of the property forfeited and the amount spent on prosecution may not always insulate a forfeiture from a finding that the forfeiture is ‘excessive.‘” Reimbursement is but one factor courts may consider in a proportionality inquiry.

Fifth, Long’s circumstances were such that he had little ability to pay $547.12. When his vehicle was impounded, Long earned between $300.00 and $600.00 in addition to $100.00 in tribal fees per month. He told the magistrate at his impoundment hearing that he lived in his truck and had only $50.00 to his name. Long was attempting to move himself out of homelessness by saving for an apartment. During that time, Long’s truck held his clothes, food, bedding, and various work tools essential to his job as a general tradesman. After the truck was towed, Long slept outside before seeking shelter from the cold weather, and he contracted influenza. These facts indicate Long could not afford to pay the $547.12 assessment. From October 13 until November 3, Long did not have his truck and could not access his tools, thus he could not find skilled labor jobs. During that period, he was homeless and sick, likely making very little money. The impoundment severely compromised Long’s ability to work—in other words, his livelihood.

Moreover, paying $50 per month when Long made at most $700, would leave him $650 with which to live. It is difficult to conceive how Long would be able to save money for an apartment and lift himself out of homelessness while paying the fine and affording the expenses of daily life. Seattle asserts that treating the payment plan as excessive punishment is to “trivialize the Eighth Amendment.” Yet to do what the city asks is to ignore the Eighth Amendment entirely. This we cannot do….

This decision is not intended to suggest that Seattle can never impound vehicles or impose costs associated with towing. Nor does it require city parking enforcement officers to determine a vehicle owner’s ability to pay at the issuance of a parking infraction …. The above analysis focuses only on enforcement. The excessive fines clause prohibits the extraction of payment as a punishment for some offenses that would deprive a person of his or her livelihood. A natural venue for this inquiry is an impoundment hearing in municipal court.

A concurrence by Chief Justice González, joined by two other Justices, had a slightly different approach to the homestead analysis.

Congratulations to my colleague Beth Colgan, who has written extensively on this subject, and whose work was cited by the majority.

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YouTube this week suspended Sen. Rand Paul’s account because of a video in which the Kentucky Republican claimed that “most of the masks that you can get over the counter don’t work” as a safeguard against COVID-19. “The virus particles are too small and go right through them,” Paul says in that video, which shows him speaking with a Newsmax interviewer. “They don’t work. There’s no value.”

YouTube said Paul violated its “COVID-19 medical misinformation policy,” which among other things forbids “claims that masks do not play a role in preventing the contraction or transmission of COVID-19.” While conceding that “private companies have the right to ban me if they want to,” Paul said he was troubled by the fact that the major social media platforms seem to be insisting that users toe the official line on COVID-19, which makes it harder to criticize ill-founded positions and policies. YouTube, he said, is acting like “an arm of the government.”

Paul has a point. But in this case, his flat, categorical statements about cloth masks are stronger than the scientific literature supports, relying on a couple of cherry-picked studies with known limitations while ignoring countervailing evidence.

In a video responding to his YouTube suspension, Paul reiterates that “most of the masks that you get over the counter don’t work” and “don’t prevent infection.” He argues that “saying cloth masks work when they don’t actually risks lives,” describing it as “potentially deadly misinformation.” While N95 respirators are effective at preventing virus transmission, he says, “the other masks don’t work.”

Paul would have been on firm ground if he had said cloth masks offer less protection than N95 masks. But the claim that cloth masks “don’t work,” meaning they offer no protection at all, is inconsistent with multiple studies suggesting that they reduce the risk of infection, especially when worn by carriers but possibly also when worn by other people in their vicinity.

Paul cites two studies to back up his belief that cloth masks are ineffective: a 2015 study of health care workers in Vietnam and a 2021 Danish study that compared people who were advised to wear masks with people who weren’t. Neither study proves that cloth masks “don’t work.”

The 2015 study, which was reported in BMJ Open, involved about 1,600 hospital employees who were randomly assigned to groups that used “medical masks” (meaning “disposable medical/surgical masks”), used “cloth masks,” or followed “usual practice,” which notably “included mask wearing.” The researchers measured each group’s rate of “clinical respiratory illness (CRI), influenza-like illness (ILI) and laboratory-confirmed respiratory virus infection.” Here are the results they reported:

The rates of all infection outcomes were highest in the cloth mask arm, with the rate of ILI statistically significantly higher in the cloth mask arm (relative risk (RR)=13.00, 95% CI 1.69 to 100.07) compared with the medical mask arm. Cloth masks also had significantly higher rates of ILI compared with the control arm. An analysis by mask use showed ILI (RR=6.64, 95% CI 1.45 to 28.65) and laboratory-confirmed virus (RR=1.72, 95% CI 1.01 to 2.94) were significantly higher in the cloth masks group compared with the medical masks group. Penetration of cloth masks by particles was almost 97% and medical masks 44%.

Those results contradict Paul’s suggestion that anything other than an N95 respirator is useless, since they indicate that surgical masks reduce the risk of infection. Still, the finding that infection was more common in the cloth-mask group than it was in the control group certainly does not seem to support recommendations or mandates that portray cloth masks as useful in preventing virus transmission.

But that is not the end of the story. As a “science brief” from the Centers for Disease Control and Prevention notes, “the study had a number of limitations,” including “the lack of a true control (no mask) group for comparison, limited source control as hospitalized patients and staff were not masked, unblinded study arm assignments potentially biasing self-reporting of illness, and the washing and re-use of cloth masks by users introducing the risk of infection from self-washing.”

In March 2020, after the COVID-19 pandemic inspired new interest in the effectiveness of cloth masks, the lead author of the BMJ study, Australian infectious disease specialist Chandini R. MacIntyre, likewise noted that “some subjects in the control arm wore surgical masks, which could explain why cloth masks performed poorly compared to the control group.” She added that “the cloth masks may have been worse in our study because they were not washed well enough—they may [have] become damp and contaminated.”

MacIntyre later did a follow-up study, reported in BMJ Open last fall, that focused on a subset of the original sample: 607 hospital employees who worked in “high-risk wards” and wore “a two-layered cloth mask.” She and her colleagues found that “the risk of infection was more than double among [health care workers] self-washing their masks compared with the hospital laundry.” They also reported that “there was no significant difference in infection between [health care workers] who wore cloth masks washed in the hospital laundry” and health care workers who wore medical masks.

“The majority of [health care workers] in the study reported hand-washing their mask themselves,” MacIntyre et al. wrote. “This could explain the poor performance of two layered cloth masks, if the self-washing was inadequate. Cloth masks washed in the hospital laundry were as protective as medical masks. Both cloth and medical masks were contaminated, but only cloth masks were reused in the study, reiterating the importance of daily washing of reusable cloth masks using proper method. A well-washed cloth mask can be as protective as a medical mask.” 

The Danish study that Paul cites, which was published in the Annals of Internal Medicine last March, was a randomized, controlled trial in which both groups of subjects received “encouragement to follow social distancing measures” but only one group was urged to “wear a mask when outside the home among other persons.” Each of the subjects in the mask-recommendation group also received “a supply of 50 surgical masks and instructions for proper use.” At follow-up, there was no statistically significant difference in positive COVID-19 antibody results between the two groups.

According to an editorial that accompanied the study, “The evidence excludes a large personal protective effect, weakly supports lesser degrees of protection, and cannot statistically exclude no effect.” The study did not address the effectiveness of masks worn by carriers in protecting other people, and the editorial emphasized that the study “does not disprove the effectiveness of widespread mask wearing.” 

In addition to overlooking the limitations of the studies on which he relied, Paul did not address the substantial body of evidence cited by the CDC, which suggests that cloth masks do “work,” at least to some extent.

That research, which includes laboratory experiments as well as observational studies, also has limitations. But instead of explaining why he is unpersuaded by the empirical case for wearing cloth masks when better alternatives are too expensive or hard to obtain, Paul simply cited a narrow slice of the relevant literature.

Furthermore, Paul did not merely say the effectiveness of cloth masks has not been proven to his satisfaction; he said research has conclusively demonstrated that they have “no value” at all. That gloss is reminiscent of the reckless judgment that then–Surgeon General Jerome Adams rendered early in the pandemic, when he tweeted that “masks” (apparently including surgical masks and N95 respirators) “are NOT effective in preventing [the] general public from catching #Coronavirus.”

Although the CDC concludes that “experimental and epidemiological data support community masking to reduce the spread of SARS-CoV-2,” it acknowledges that “further research is needed to expand the evidence base for the protective effect of cloth masks and in particular to identify the combinations of materials that maximize both their blocking and filtering effectiveness.” Paul could have provided a useful alternative perspective if he had focused on the limits of the existing research and the gaps in our knowledge instead of dismissing the evidence without even considering it.

Although Paul presents himself as a defender of scientific standards, it does not seem like he is actually interested in having this conversation. In a tweet responding to his YouTube suspension, he called it “a badge of honor,” saying “leftwing cretins at Youtube” were “banning me for 7 days” even though he cited “2 peer reviewed articles saying masks don’t work.”

YouTube’s response to Paul’s overstatements, of course, is hardly a model of rational discourse, which requires rebutting arguments by citing contrary evidence instead of treating them as too dangerous for people to consider. “Private companies have a right to ban me if they want to,” Paul said, “but I think it is really anti–free speech [and] anti–progress of science, which involves skepticism and argumentation to arrive at the truth.”

I am inclined to agree with Paul that social media companies, partly in response to inappropriate government pressure, are constraining online debate about COVID-19 issues in an arbitrary and unhealthy way. But this particular example would have been more compelling if Paul had been more careful in framing his case against the prevailing wisdom.

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I wrote about this general issue earlier this month, and my post began with a discussion of several sealing requests submitted by the same litigant. Just today there was another decision in one of his cases, Del Nero v. NCO Financial Systems, Inc., handed down by Judge Joshua Wolson (E.D. Pa.):

Plaintiff Darren Del Nero’s Fair Debt Collection Practices Act case was dormant for more than 8 ½ years. Then, on May 24, 2021, Mr. Del Nero filed a motion asking the Court to seal the entire record and redact certain identifying information such as his name, address, and email address. On June 10, 2021, the Court granted Mr. Del Nero’s motion in part and permitted him to submit docket entries that redact his street and email addresses. However, the Court denied Mr. Del Nero’s request to seal the entire record or replace his name with a pseudonym. Now, Mr. Del Nero asks the Court to reconsider that decision. {Mr. Del Nero’s filings indicate that he utilizes various aliases including Darren Del Nero, Darren Chaker, Darren Chaker-Del Nero, and David Hunter.} …

First, … [w]hile Mr. Del Nero attaches a few intervening decisions where other courts sealed some or all of the filings in those cases, none of those decisions are binding on this Court, and therefore the decisions do not constitute a change in controlling law….

Second, Mr. Del Nero’s new evidence does not change the Court’s prior analysis. To support his Motion for Reconsideration, Mr. Del Nero attached text messages that he received on June 11, 2021, the day after the Court issued its Order. According to Mr. Del Nero, the text messages contain “photos of headless males,” and he believes that the “Bulgarian Mafia” sent him these photos in an effort to intimidate him for his cooperation with law enforcement in a pending criminal matter. However, as the Court set forth in its prior Memorandum, sealing Mr. Del Nero’s identity in this case will not shield him from further harassment. The people who have targeted Mr. Del Nero know who he is, and, apparently, have his phone number as well. The Court cannot change that with a sealing order. The harassment of Mr. Del Nero, as disturbing as it may be, has nothing to do with Mr. Del Nero’s involvement in this case, and sealing this case or Mr. Del Nero’s identify in this matter will not shield him from further harassment….

Third, … Mr. Del Nero … continues to rely on California laws that do not govern the Court’s analysis and does not assert any colorable basis for the Court to depart from the governing standards set forth by the Third Circuit….

Also, Mr. Del Nero maintains a fairly robust public presence online. Indeed, a simple Google search has identified at least two websites that appear to belong to him, and those sites contain pictures of him and links for visitors to contact him on his various social media accounts such as Facebook, flickr, LinkedIn, StackExchange, Twitter, Vimeo, and Pinterest. See https://ift.tt/37DDIxe (last accessed on Aug. 11, 2021); https://ift.tt/2VPCEUO (same). Even Mr. Del Nero’s motion references the fact that he provided an interview to Fox News as a witness to a violent crime, and he included a link to view that interview online. None of this conduct is consistent with the relief that Mr. Del Nero seeks in his motion, and such conduct belies Mr. Del Nero’s assertion that “having such material in the public record could be a death sentence.”

Finally, the Court notes that Mr. Del Nero’s Motion contains both his street and email addresses, both of which the Court has permitted him to redact from filings. In addition, Mr. Del Nero attached as exhibits certain court decisions that appear to be under seal in those cases. Thus, the Court will permit these materials to be redacted from public view.

In light of the foregoing, it is ORDERED as follows:

1. Plaintiff Darren Del Nero’s Application to File Under Seal and Motion for Reconsideration of Ex Parte Motion to Seal Records … is DENIED;
2. The Clerk of Court shall keep Mr. Del Nero’s Motion … under seal until further Order of this Court;
3. On or before August 20, 2021, Mr. Del Nero shall provide the Court with a redacted version of his Motion, redacting his address information, as well as Exhibits A, D, E, and L, which appear to be under seal in other cases. Mr. Del Nero may send electronic versions of the redacted documents to [the Court]. If Mr. Del Nero does not provide the Court with redacted documents, the Court will direct the Clerk of Court to unseal the Motion without further notice to Mr. Del Nero ….

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A Philadelphia man who spent 50 years in prison—37 of them in solitary confinement—was released Wednesday after a judge agreed with prosecutors that the murder case for which he was convicted was compromised with false and “highly suspect” statements.

Arthur Johnson was convicted for the murder of Jerome Wakefield in 1970, when Johnson was 18. Prosecutors said Johnson stabbed Wakefield after the victim had been shot by Johnson’s codefendant, Gary Brame, who was just 15.

Johnson confessed to the stabbing, but subsequently said the confession was coerced out of him after he was abused in police custody for more than 20 hours. Since then, Brame has also said that Johnson had no involvement in Wakefield’s killing.

The Philadelphia Inquirer reported Wednesday that Johnson, with the support of the Philadelphia District Attorney’s Office Conviction Integrity Unit (CIU), was freed. Common Pleas Court Judge Scott DiClaudio permitted Johnson to plead guilty to a lesser crime with a 10–20-year prison sentence. He has already served that time.

After failed prison escape attempts back in 1979, Johnson was relegated to solitary confinement and was kept in a cell for at least 23 hours a day for years. Johnson sued over that treatment in 2017 with the help of the Abolitionist Law Center, a Pittsburgh-based prisoner rights law firm. It took two hearings to convince a U.S. district judge that Johnson was no longer an escape risk 37 years later—only then was he moved into the general prison population. According to the Pittsburgh Post-Gazette, despite a prison deputy superintendent referring to Johnson as a “model prisoner,” other prison officials argued against releasing him from solitary. They insisted he might try to escape again, despite him being 65 years old when he sued.

Johnson’s release this week doesn’t technically count as exoneration, but it’s nevertheless one of many conviction corrections coordinated in recent years by Philly’s CIU, launched in 2018 under reformer District Attorney Larry Krasner and Assistant District Attorney Patricia Cummings. The CIU put out a report in June describing the 21 exonerations it had coordinated since its founding. These exonerated men had spent between them 384 years in prison. In 20 of these cases, the CIU found evidence of misconduct by officials. Exculpatory evidence was withheld in each case, police had engaged in misconduct in three-quarters of them, and official perjury was discovered in half of them.

The report also describes some of the difficulties the CIU has faced dealing with judges who seem skeptical and surprised to find prosecutors working alongside the defense instead of against them. And judges seem quick to excuse government misconduct and its role in putting innocent men behind bars:

The CIU has encountered judges who are all too ready to credit weak excuses proffered by even repeat offenders in law enforcement. One explanation for this deference may be that many judges are former prosecutors or products of past administrations’ culture and so have misconceptions about how prosecutors should behave. But even judges from other backgrounds are often reluctant to recognize how pervasive prosecutorial misconduct can be. What that is the case, officials accused of misconduct are likely to find a “sympathetic ear” ready to listen to any reason they might offer for their allegedly problematic behavior.

The full report is available online here, featuring summaries of some of the cases where the CIU has arranged exonerations. Chester Hollman, an exoneree who spent 25 years in prison for a murder he didn’t commit, was the focus of an episode of The Innocence Files, a 10-episode documentary series available on Netflix.

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U.S. Dominion’s defamation suits against Kraken lawyer Sidney Powell, Rudy Giuliani, and My Pillow CEO Mike Lindell will proceed. Yesterday, Judge Carl Nichols of the U.S. District Court in D.C. denied the defendants’ motions to dismiss in their entirety in a combined opinion.

Each of the different defendants made slightly different claims, but Judge Nichols rejected them all. Powell, for example, tried to argue that her allegations about Dominion voting machines were simply matters of opinion, and therefore could not be defamatory. No dice, Judge Nichols explained.

Powell contends that no reasonable person could conclude that her statements were statements of fact because they “concern the 2020 presidential election, which wa both bitter and controversial,” Powell’s Mot. at 38, and were made “as an attorney-advocate for [Powell’s] preferred candidate and in support of her legal and political positions,” id. at 39. As an initial matter, there is no blanket immunity for statements that are “political” in nature: as the Court of Appeals has put it, the fact that statements were made in a “political ‘context’ does not indiscriminately immunize every statement contained therein.” Weyrich, 235 F.3d at 626. It is true that courts recognize the value in some level of “imaginative expression” or “rhetorical hyperbole” in our public debate. Milkovich, 497 U.S. at 2. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

Powell similarly argues that her statements were protected commentary about other lawsuits. But Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation; an attorney’s out-of court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation. Messina v. Krakower, 439 F.3d 755, 761–62 (D.C. Cir. 2006) (recognizing no privilege when statement is published to persons not having an interest [in] or connection to the litigation”) . . .

The question, then, is whether a reasonable juror could conclude that Powell’s statements expressed or implied a verifiably false fact about Dominion. Milkovich, 497 U.S. at 19–20. This is not a close call. To take one example, Powell has stated publicly that she has “evidence from [the] mouth of the guy who founded [Dominion] admit[ting that] he can change a million votes, no problem at all.” Powell Compl. ¶ 181(j). She told audiences that she would “tweet out the video.” Id. These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can “change a million votes,” or she does not.

Judge Nichols also rejected defendant’s claims that Dominion failed to adequately plead “actual malice” and the efforts to challenge venue and jurisdiction. The opinion is a thorough drubbing. (And, for those who care about such things, Nichols is a Trump appointee.)

We will see more of these suits. Just this week Dominion also filed defamation claims against Newsmax and One America News Network (OANN). It has also sued Fox News.

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Prof. Greg Weiner (@GregWeiner1) ponders the broader implications of how the federal government re-imposed an eviction moratorium in this New York Times op-ed. It begins:

A curious constitutional drama unfolded in the nation’s capital last week. Having failed to pass a moratorium on evictions, members of Congress took to the steps of the U.S. Capitol to demand that President Biden impose one.

For his part, Mr. Biden strode into the White House briefing room and suggested that the prerogative to make policy on the issue lay with Congress.

Soon enough, though, Mr. Biden relented, and Democrats celebrated. As policy, it was a progressive victory. Constitutionally, it was both troubling and bizarre.

The issue was not simply whether the moratorium was constitutional, though the federal courts have questioned the statutory authority the Centers for Disease Control and Prevention claimed. The underlying constitutional derangement pertained to the way members of Congress and the president were eager to endorse each other’s authority without exercising their own.

As a majority of the Supreme Court seems to recognize, neither the text of the underlying statute nor the CDC’s relevant regulations anticipated the use of an eviction moratorium to counter the interstate spread of disease. Congress could address this (as it did last year) by expressly delegating such authority, or by enacting a moratorium directly, but they have not even tried.

It is possible that any effort to enact a moratorium would be blocked in the Senate, but we do not know. More importantly, Weiner notes, the episode highlights how the legislature has become averse to legislating. This is not new, but it appears to be getting worse. This has a range of implications (some of which Chris Walker and I explored in this article).

This is not a partisan issue. Republicans are no less guilty of the failure to legislate than Democrats. Writes Weiner:

The acid test of separation of powers is whether members of Congress are willing to assert their authority against a president of their own party. Democrats failed that on evictions, just as Republicans did by handing off authority to Donald Trump. Given this bipartisan consensus for presidential authority, it may be time to acknowledge reality: The concept of the separation of powers — which depends on members of Congress unifying to protect legislative power — has collapsed in the United States. We have become a de facto parliamentary system in which competing parties battle for executive power. The problem is that we have acquired all the vices of such a system but none of its virtues.

The whole op-ed is worth a read.

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