Sen. Tim Scott (R–S.C.) has reportedly proposed a compromise to rein in qualified immunity, the legal doctrine that makes it difficult for victims to sue government officials when their constitutional rights have been violated.

Scott, who has served as the Republican leader on police reform talks, is suggesting that the doctrine be pulled back for law enforcement and that liability shift from individual cops to the departments that employ them. As of this writing, it was not immediately clear if the plan would curtail qualified immunity or outright eliminate it. (Qualified immunity protects all public officials, though this move would likely apply solely to police officers.)

Legislated into existence by the Supreme Court, qualified immunity currently requires that any misconduct alleged against state actors be outlined almost exactly in a previous court precedent should the victim want the right to bring his suit before a jury. Such a thing often doesn’t exist. Qualified immunity has thus protected a cop who shot a 10-year-old, two cops who allegedly stole $225,000 while executing a search warrant, a cop who ruined a man’s car during a bogus drug search, two cops who beat and arrested a man for standing outside his own house, and a cop who shot an unarmed 15-year-old, among others.

“[Democrats] have been as responsive in this recent conversation than they have ever been, in my opinion,” Scott told CNN, noting that the discussion is “on the verge of wrapping soon.”

Some progressives have pushed back on the idea, according to the network, instead insisting that individual officers be held accountable personally. That’s misguided. As I’ve previously written, police departments already finance the vast majority of lawsuit payouts when a police officer loses a suit in his or her professional capacity.

“Sen. Tim Scott’s proposal—requiring the city to bear the costs of these suits, instead of officers—would make transparent what already happens in over 99 percent of cases,” writes Joanna C. Schwartz, a professor of law at the University of California, Los Angeles and an expert in qualified immunity. “We absolutely need to find ways to increase officer accountability—by, for example, changing union protections that make it difficult to fire bad officers.”

The GOP has historically resisted change on this issue. After the death of George Floyd sparked a national conversation on issues of police misbehavior and accountability, the issue of qualified immunity went from an obscure doctrine discussed in legal and academic circles to something the majority of the American public now supports reforming. Former Rep. Justin Amash (L–Mich.) unveiled a bill to eliminate the doctrine for all government officials and achieved tripartisan support—though with only one Republican co-sponsor.

Sen. Mike Braun (R–Ind.) introduced his own proposal to curb the doctrine, but withdrew it after Fox News host Tucker Carlson lambasted him for it and after the law enforcement lobby made its resistance known. Former President Donald Trump said that reform on the issue would’ve constituted an automatic veto, and Scott himself said last summer that it would have been a “poison pill.”

But a few states have picked up the mantle where Congress has refused to act. The New York Times reports that legislators are studying reforms in Colorado, which passed a law last summer allowing people to bring claims against police officers in state court. New Mexico and Connecticut have greenlit similar pieces of legislation.

Virginia also mulled such reforms. Lawmakers eventually abandoned the idea after encountering opposition from a group of predictable dissenters: police unions.

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The so-called “duty to retreat” has long been in the news. Today, 12 states recognize such a duty—which is to say, outlaw deadly force in self-defense (even against threat of death or serious bodily injury) if one could safely avoid the necessity of self-defense by retreating—but until recent decades there used to be more.

But it turns out that six of the duty-to-retreat states (Connecticut, Delaware, Hawaii, Maine, New Jersey, and Nebraska) also have a much less talked-about “duty to comply with negative demands.” For instance, under Connecticut law, one can generally use deadly force when one “reasonably believes that [the target] is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm” (including sexual assault). But:

a person is not justified in using deadly physical force upon another person

if he or she knows that he or she can avoid the necessity of using such force

with complete safety

[1] by retreating, except that the actor shall not be required to retreat … [from] his or her dwelling … or place of work …  or

[2] by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.

Other statutes are similar, though the Maine and New Jersey statutes don’t exclude “place of work” from the duty to retreat.

The logic of the duty to retreat and the duty to comply is similar: Both stem from an interpretation of the requirement that self-defense be “necess[ary]”:

• If I know I “can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary.
• Likewise if I know I can avoid the necessity of using such force with complete safety by complying with a demand to abstain from some act—perhaps a demand that I stop burning a flag, or that I stop playing my music too loudly, or even that I stop kissing the threatener’s ex-girlfriend.

Indeed, deadly force isn’t strictly necessary under this definition even when the person is faced with a demand to engage in an act rather than abstain from one. Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (It’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes “know” that one can retreat with “complete safety.”) Under the “necessity” definition we’re discussing, here too deadly force isn’t really necessary, since I can avoid the need to use deadly force by handing over the wallet.

Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person. Again, under the “necessity” definition we’re discussing, deadly force wouldn’t really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Connecticut rule, I could refuse to beg without losing my right to use lethal self-defense, since this demand is a demand to do something rather than to abstain from something.

Likewise if someone credibly tells me “Say you renounce your apostasy or I’ll kill you” or “reveal this-and-such secret to me or I’ll kill you” or “apologize or I’ll kill you.” In all these cases, using deadly force wouldn’t really be necessary under the definition of necessity that’s used to justify the duty to retreat. But the Connecticut rule wouldn’t apply here, because it’s a demand to act and not to refrain, so I’d be free to use deadly force in self-defense without complying with the demand. (Note that this theory wouldn’t go so far as, say, a duty to comply with a demand for sex; since you’re entitled to use deadly force when necessary to prevent rape, you can’t comply with this demand “with complete safety,” since such safety includes safety from rape.)

Yet of the 12 states that recognize a duty to retreat, only 6 recognize a duty to comply with negative demands (demands to abstain). And none recognizes a duty to comply with positive demands (demands to act).

So let me ask those readers who support one of these duties: Would you say that:

1. You only support only the duty to retreat, and not a duty to comply with negative demands (or with positive demands). If so, why do you distinguish the two, given that both stem from the idea that people shouldn’t use deadly force unless it’s really necessary?
2. You support the duty to retreat and a duty to comply with negative demands, but not a duty to comply with positive demands. Again, why, given that both stem from the idea that people shouldn’t use deadly force unless it’s really necessary?
3. You support the duty to comply with negative demands, but not a duty to comply with positive demands, but not the duty to retreat. That turns out to be the rule in New Hampshire (possibly as a result of legislative oversight or inertia when the duty to retreat was essentially repealed in 2011 but the duty to comply with negative demands was untouched). Again, why?
4. You support the duty to retreat, the duty to comply with negative demands, and the duty to comply with positive demands. How far do you take these duties?

I don’t think these questions are unanswerable: For instance, one possible answer would be something like this:

“Could avoid the necessity of using deadly force” means “could avoid the necessity of using deadly force without undue sacrifice of your other rights.” And having to sacrifice the right to be in some place temporarily isn’t undue sacrifice, but having to sacrifice the right not to beg or not to apologize or to keep your money is undue sacrifice.

(But then why exactly should one so conclude, and where would one draw the line?) In any event, I’d love to hear your own answers.

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The Supreme Court issued three opinions this morning, though not in any of the term’s most watched cases concerning religious liberty, administrative agencies, and the Affordable Care Act.

First, in Jones v. Mississippi, the Court split largely on traditional ideological lines to hold that, under existing Eighth Amendment jurisprudence, the judicial factfinder need not make a separate factual finding that a juvenile defendant is permanently incorrigible before imposing a sentence of life without parole. Justice Kavanaugh wrote the majority, joined by the Chief Justice and Justices Alito, Gorsuch and Barrett. Justice Thomas wrote separately, concurring the result, repeating his objections to some of the Eighth Amendment precedents upon which the majority relied. Justice Sotomayor wrote in dissent, joined by Justices Kagan and Breyer.

In a potentially significant administrative law decision on when litigants must exhaust administrative remedies, the Court held, in Carr v. Saul, that the lower court improperly imposed an issue-exhaustion requirement on Social Security benefit claimants who had sought to press Appointments Clause challenges against Social Security Administration Administrative Law Judges in the wake of Lucia v. SEC.  Justice Sotomayor wrote the opinion for the Court, joined by the Chief Justice and Justices Alito, Kagan and Kavanaugh. Justice Thomas concurred in part and concurred in the judgment, joined by Justices Gorsuch and Barrett. Justice Breyer also concurred in part and concurred in the judgment.

Finally, in AMG Capital Management v. Federal Trade Commission, the Court unanimously concluded that Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, equitable monetary relief such as restitution or disgorgement for “unfair or deceptive” practices. Justice Breyer wrote for the unanimous court.

Earlier this year, I predicted that we would see an opinion in California v. Texas by the end of April. Time is running out for this prediction to prove correct. I am fairly confident in the ultimate outcome of that case, though I expect the Court may be splintered on standing and remedy (and there may be some need to harmonize how this case handles severability, in particular, with the Court’s pending decision in Collins v. Mnuchin).

 

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“Is It Time to End Outdoor Masking?” That was the question posed by Spencer Bokat-Lindell, a staff editor at The New York Times, in a recent opinion piece. Bokat-Lindell noted that journalists at Reason—as well as Slate, The New Republic, and The Atlantic—had expressed skepticism of government mandates requiring mask while outdoors, and decided to ask the experts to see what they thought.

“Is Mr. Soave right?” asked Bokat-Lindell. “Here’s what public health experts and journalists are saying.”

As it turns out, they largely agree that outdoor masking is useless.

Take it away, experts:

“Transmissions do not take place between solitary individuals going for a walk, transiently passing each other on the street, a hiking trail or a jogging track,” Dr. Paul E. Sax, a professor at Harvard Medical School, wrote in NEJM Journal Watch. “That biker who whizzes by without a mask poses no danger to us, at least from a respiratory virus perspective.”…

Experts have been preaching the importance of distinguishing between indoor and outdoor transmission risks since the early months of the pandemic. But now that the vaccination drive is underway, the expectation of universal outdoor masking “almost becomes ridiculous,” Monica Gandhi, an infectious disease doctor at the University of California, San Francisco, told Slate. Dr. Gandhi isn’t alone: Several epidemiologists have called for an end to outdoor mask mandates, which some 24 states still have in place.

Earlier this week, The Washington Post reached the same conclusion:

Even if one is wary about the risks right now, those risks will abate considerably over the next month. More than half of all eligible Americans have received at least one coronavirus vaccination shot, which means that by the end of May more than half of all Americans will be fully vaccinated. A growing body of evidence suggests that fully vaccinated Americans are highly unlikely vectors for transmitting the disease. This means the need for mask-wearing should be reduced even further….

Just let time work its magic. As more and more vaccinated people feel comfortable going maskless outside, the social norm of putting on a mask will subside slowly, then suddenly.

FREE MINDS

Howard University, a historically black college in Washington, D.C., has decided to eliminate its classics department, prompting outrage:

FREE MARKETS

The U.S. is imposing sanctions on Myanmar, where the military recently placed the democratically elected president under house arrest and launched a coup. The targets of the sanctions are two state-run businesses that fund the military, according to The New York Times:

QUICK HITS

• The FBI reportedly classified the 2017 baseball shooting—in which a deranged gunman wounded Rep. Steve Scalise (R–La.)—as a “suicide by cop” incident, which is ridiculous.

• The Washington Examiner: “US Postal Service running secret program that tracks people’s social media and flags government agencies: Report.”

• Why hasn’t New York Gov. Andrew Cuomo resigned yet?

• Derek Chauvin is being held in solitary confinement for 23 hours each day.

• President Joe Biden plans to formally recognize the Armenian genocide.

• There are two ways to read the same COVID-19 outbreak story: the way a scientist would, and the way a member of the media would:

Two frames, same incident: pic.twitter.com/m8bAoKHg2y

— Josh Barro (@jbarro) April 21, 2021

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Pedro Castillo, a self-described Marxist-Leninist heading the Peru Libre (“Free Peru”) ticket, has secured a spot in the country’s June 6 presidential runoff election. The only person standing between him and power is Keiko Fujimori, the daughter of a former president who assumed dictatorial control in the 1990s and the leader of Fuerza Popular (“Popular Force”), a right-wing populist political party. If Castillo wins, he threatens to impose the same sort of ruinous policies that have decimated Venezuela.

Peru Libre’s platform calls for an economic transformation that would include nationalization of the mining, gas, oil, hydro-energy, and communications industries; agrarian reform which will include land expropriation and might involve land redistribution; elimination of private pensions; voiding contracts with the companies that are currently in charge of managing airports, railways, ports, and highways, and transferring these functions to regional governments and municipalities; and reviewing all trade agreements with an eye toward abrogating at least some of them.

Some of these measures were tried unsuccessfully by the military government of left-wing General Velasco Alvarado (1968-1975). During the so-called agrarian reform carried out by that regime, some 15,000 properties (totaling nine million hectares) were taken by force from private owners for which they received inadequate compensation. The lands were mismanaged by the new owners who lacked the training required to successfully oversee large farms.

The Peru Libre platform is reminiscent of that of Venezuelan socialist Hugo Chavez. For example, Chavez nationalized Venezuela’s oil industry in 2005. Not only did state mismanagement prove fatal, but the lack of private investment also contributed to the demise of the once-mighty Venezuelan industry. Castillo’s plans to nationalize Peru’s powerhouse copper industry will lead to similarly tragic results. If Castillo wins, expect both government mismanagement and an output collapse that will cripple the nation’s copper production.

Venezuela’s economic collapse under Chavez also triggered a vast outmigration to Peru and other South American countries. Of the roughly five million people who have fled Venezuela, about one million moved to Peru, which is second only to Colombia as a destination for emigrants from the Bolivarian Republic. With Venezuelans accounting for about 3 percent of the country’s resident population, Peruvian citizens are frequently confronted by the results of socialist transformation. Many Peruvians complain that the Venezuelan influx has created more competition for certain jobs, driving down wages. Given this palpable result of Chavismo, it may seem odd that a domestic advocate of this failed ideology would win a plurality of presidential votes.

Although Castillo is an educator and holds a graduate degree in educational psychology, he appears to have a weak grasp on policy issues. Asked about antitrust in a recent interview, the candidate identified a leading supermarket chain and a major department store as monopolies, despite the fact that they both have robust domestic competition.

Apparently, Castillo is not the brains behind Peru Libre. Mirko Vidal, a Peruvian libertarian who offers political commentary on YouTube, has pointed out that the party’s thought leadership comes from Vladimir Cerrón, a former provincial governor. Cerrón was removed from office after being convicted for corruption and abuse of power in awarding a sanitation contract in his prior role as mayor of La Oroya. His 2019 conviction came with a 56-month prison sentence and a civil penalty of PEN 850,000 (roughly equivalent to $234,000).

The ideology that Cerrón and Castillo are promoting will be distressingly familiar to older Peruvians, who will remember the depredations of Sendero Luminoso (known in English as the Shining Path). This Maoist terrorist organization occupied huge swaths of the nation’s interior during the late 20th century, and the conflict it caused is believed to have resulted in almost 70,000 deaths.

Peru Libre’s ideology more closely matches that of a rival Marxist terrorist group, the Túpac Amaru Revolutionary Movement (whose Spanish acronym is MRTA).  Both Peru Libre and MRTA were inspired by the work of José Carlos Mariátegui, an influential Peruvian Marxist theorist active in the 1920s. Mariátegui reoriented Marxism to Peruvian realities, by, for example, arguing that a revolution could be led by indigenous peasants rather than factory workers and that a fully developed capitalist system was not a necessary precondition as Karl Marx had originally argued. 

Mariategui’s reformulation resonated with Peru’s indigenous people who were marginalized and excluded from political power ever since Spain supplanted the Incas. He also jettisoned Marxian atheism, recognizing the importance of Catholicism to the indigenous population.

Among MRTA’s members was the American socialist Lori Berenson, who returned to the U.S. in 2015 after serving a 20-year prison sentence. In 1997, MRTA staged a four-month-long takeover of the Japanese Embassy in Lima, holding hundreds hostage. The standoff ended when the Peruvian military assaulted the building, freeing most of the diplomatic hostages while killing or capturing most of the MRTA operatives. By 2001, the revolutionary movement was defunct, to be replaced a few years later by a political party guided by similar principles.

The fact that Castillo polled at the top of the presidential field may be explained by both the number of viable candidates dividing the overall vote and the popular revulsion at Peru’s political status quo. Castillo topped a field of 18 other candidates, including 9 who garnered significant vote totals (of over 700,000 or 5 percent each). Hernando de Soto, an economist with libertarian leanings, placed fourth with over 1.6 million votes. A full 18 percent of voters returned blank or spoiled presidential ballots. 

Voters appear to have become dismayed by Peru’s political chaos and poor governance. After the nation’s last elected president, Pedro Pablo Kuczynski (PPK), was obliged to step down in 2018 due to an impeachment threat, the nation has rapidly cycled through three unelected presidents to complete what would have been PPK’s five-year term.

The nation has also suffered horrendously during the COVID-19 pandemic. Despite an extremely strict lockdown, the country has experienced a COVID death rate of over 0.17 percent, which is worse than neighboring Chile and Colombia, and not far behind the United States. Although the lockdown failed to prevent widespread mortality, it dealt a severe blow to the nation’s economy, which contracted 11 percent in 2020.

The only barrier to a Castillo victory is second-place finisher Keiko Fujimori, a perennial presidential candidate who has reached the runoff stage in the last two presidential elections, only to be defeated by a more popular rival. Although Keiko (who normally uses her first name) appeared to have a historic ceiling of just under 50 percent of the popular vote, it is likely much lower now due to her machinations and those of her party since 2016.

Keiko’s father, Alberto Fujimori, is credited with vanquishing Sendero Luminoso and MRTA, but he did so at the cost of dissolving Congress and engaging in massive corruption. After fleeing the country, he was extradited from Chile and now sits in prison. Keiko and her party played a pivotal role in unseating PPK, thus giving rise to the country’s recent instability. She was also temporarily jailed for her own alleged corruption offenses.

Popular revulsion against this current member of a prospective Fujimori dynasty may be enough for the socialist Castillo to win the presidency in June. If that occurs, expect mass emigration, economic calamity, and social unrest to follow.

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Please feel free to write comments on this post on whatever topic you like! (As usual, please avoid personal insults of each other, vulgarities aimed at each other or at third parties, or other things that are likely to poison the discussion.)

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In all the coronavirus coverage, one issue that rarely makes the headlines is the correlation between body weight and the severity of COVID-19’s effects. And one angle that virtually never makes the headlines is how the government funds the unhealthy foods that increase obesity rates, thereby increasing our susceptibility to such diseases.

Last month the Centers for Disease Control and Prevention (CDC) released a study showing that nearly 80 percent of those hospitalized with COVID-19 were overweight or obese. After age, body weight is the second greatest predictor of COVID-related hospitalization and death. Almost three quarters of all Americans ages 20 and up are overweight, and close to half of that group is considered obese.

That might be one of the reasons why Asian countries whose populations have low body mass indexes (BMI) have fewer deaths per capita from COVID-19, while the United States has one of the highest death rates from the virus in the world.

“The correlation between obesity and mortality rates from COVID-19 is clear and compelling,” World Health Organization chief Tedros Adhanom Ghebreyesus has said. “This must act as a wake-up call to governments globally.”

It is not a wakeup call in America. Not only is the U. S. government not making any efforts to reduce the obesity epidemic, it is actively subsidizing food that contributes to the problem. The U.S. Department of Agriculture recommends that people fill half their plate with fruits and vegetables, yet the vast majority of its food subsidies—$170 billion from 1995 to 2010—go toward the major ingredients of junk food, such as corn, wheat, rice, soy, and milk.

“Hundreds of billions of dollars are funneled into subsidized foods that largely end up in drive-thru windows and in processed food manufacturers,” said Eat Smarter author Shawn Stevenson on the Fat-Burning Man podcast. “A study tracked the results of the food subsidies by our government. The folks with the highest consumption of these government subsidized foods had a 40 percent increase in the risk of being obese. Our government is funding sickness.”

Stevenson is referring to a Journal of the American Medical Association (JAMA) study that showed those who consumed the most government-subsidized foods had a 37 percent greater risk for obesity, a 41 percent greater risk of belly fat, and a 34 percent higher risk for elevated inflammation, compared to the lowest consumption quartile.

The resulting susceptibility to disease goes well beyond the current pandemic. In 2018, JAMA reported that poor diet is the number one cause of chronic disease in the United States. Small wonder, given that more than 122 million Americans are diabetic or prediabetic, 240 million are overweight or obese, and nearly 60 percent have some form of cardiovascular disease.

We have the power to make real changes in the way we eat and move. The government could help that process by taking its thumb off the scale and ceasing to subsidize these foods.

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The Reconstruction Amendments: Essential Documents (2 Volumes) presents researchers, students and judges an unprecedented opportunity to investigate the original public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments. For the first time, scholars have a word-searchable collection of speeches, debates and publications relating to the framing and ratification of the three Reconstruction Amendments. In this fourth and final post, I will briefly discuss the new research methodologies made possible by the collection, and describe newly available teaching materials for a semester course on the Reconstruction Amendments.

The two volumes contain more than 400 original historical documents spread across approximately 1,200 oversized pages (matching the Founders’ Constitution) with single spaced text. There is a lot of stuff in here.

Some researchers will know immediately where to look: perhaps straight to Susan B. Anthony’s “Make the Slave’s Case or Own,” (Vol. 1, p. 283) or Charles Sumner’s effort to broaden the language of the Thirteenth Amendment, (Vol. 1, p. 434), Jacob Howard’s Speech Introducing the Fourteenth Amendment to the Senate (Vol. 2, p. 185) or Frederick Douglass’s criticism of the Fourteenth Amendment as an “unfortunate blunder.” (Vol. 2. p. 293). Others may simply be interested in, say, studying the Fifteenth Amendment framing debates (Vol. 2, pp. 439-536). These kinds of specific interests are easily located in the collection, either by way of the Table of Contents or the indexes.

Those who purchase the e-edition of the volumes have the additional opportunity to conduct word-searches of the documents (as some VC members have discovered and put to good use!). This allows scholars to search a curated collection of Reconstruction-era documents for terms like “privileges or immunities,” “Corfield v. Coryell,” “appropriate legislation,” “the Federalist,” “bill of rights,” “natural rights” or “women’s rights.” The results of these searches can be surprising. Researchers will discover, for example, that the Reconstruction debates contain a great many references to “McCulloch v. Maryland,” but that the speakers held significantly different understandings of Chief Justice John Marshall’s famous opinion.

The documents in both volumes are arranged in chronological order and can be (and aspire to be) read cover to cover. Readers interested in doing so will be rewarded with a deep understanding of antebellum constitutional argument and the grand public constitutional debates of 1864-1870. Each section interconnects with the next. By the end of the collection, readers will realize that the Fifteenth Amendment debates contain significant arguments about the meaning of the Fourteenth Amendment, Fourteenth Amendment debates contain significant arguments about the meaning of the Thirteenth Amendment, and the Thirteenth Amendment debates contain significant arguments about the nature of the original Constitution.

Readers lacking a background in antebellum and reconstruction history, however, may find themselves at sea when confronted with such a vast array of historical documents. Absent some knowledge of the historical context in which these debates arose, it may be difficult for readers to appreciate the significance and, occasionally, even the meaning of antebellum and reconstruction constitutional debate. For that reason, both volumes include substantial introductory essays for each section of the collection. These essays explain the nature of the included documents, why they are important, and the historical context in which they appeared.

The essay introducing the drafting of the Thirteenth Amendment, for example, describes the included documents, explains the historical context of the Thirty-Eighth Congress, describes the major arguments for and against passage, notes how the proposed language of the amendment developed over the course of the debates, and provides the historical context, including the importance of President Lincoln’s reelection. Similar essays introduce the drafting and ratification of all three reconstruction amendments: The documents are briefly described, placed within their historical context, and the course of events explained so that lay readers may engage the documents with a basic idea of what happened, when it happened, and who participated.

The two volumes, along with their explanatory introductory essays present an opportunity for teachers to create a course on the history of the Reconstruction Amendments. Currently, there few (any?) such courses on the history of the Reconstruction Amendments at American Law Schools—at least prior to the publication of these manuscripts. This last term, Prof. Michael McConnell at Stanford Law School created such a course on Constitutional Reconstruction using the documents in this collection (and has graciously added his comments about doing so to the book’s promotional materials—see “review quotes” at this link).

To facilitate the creation of more such courses, I have prepared a set of teaching materials. They are available both at my SSRN webpage, and as a link posted on the University of Chicago Press webpage for the volumes (see “download the instructor’s manual”). These teaching materials include a sample syllabus for a fourteen-week course, weekly reading assignments with specific page numbers, explanations for the instructor regarding the nature and context of the assigned materials, and suggested questions for class discussion for each week of the course.

It is my hope, and it was my purpose, to provide a set of documents and teaching materials that would be useful to researchers, teachers, lawyers and judges regardless of their position on originalism, their interpretation of “privileges or immunities,” or their stance on the “1619 Project.” My goal is to have lowered the barriers to original historical research and teaching about this critical period in our constitutional history.

My thanks to Eugene Volokh and his fellow conspirators for giving me a chance to talk about what I did for my summer vacation … over the last ten years.

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On one night last summer, Ted Hicks, owner of Apex Extractions, had somewhere from 50 to 75 cars suddenly pull up in front of his cannabis extraction facility located in an industrial part of Oakland, California.

“Over a hundred people get out and they break into the facility and just raid it and swarm it and keep going and going until it’s wiped out,” he tells Reason.

Had you described this scene to someone a decade ago, they’d probably assume the people ransacking Hicks’ business were cops. Instead, he spent the whole night trying to get the police to show up to his licensed, state-legal cannabis manufacturing facility.

“Police were called. No one could get the police. 9-1-1 was busy, there wasn’t a police presence for hours,” he tells Reason, explaining that law enforcement was busy responding to protests and riots in other parts of the city over the police killing of George Floyd.

Hicks’ experience, unfortunate as it is, highlights the growing normalization of the once-prohibited industry, even as it has had to cope with the ups and downs of last year. All things considered, though, the pandemic hasn’t been a bad time to be a pot merchant.

California Gov. Gavin Newsom, a Democrat, issued his first stay-at-home order in March 2020, which required people to stay in their homes unless performing a few essential tasks, like buying food or going to work at places deemed essential by the state.

That order shut down huge swaths of the economy. But not the budding cannabis industry, whose collection of growers, processors, distributors, and retailers were all granted coveted “essential” status by Newsom.

“Being deemed an essential business by the state was huge in an industry like cannabis where federally we’re illegal,” says Kristi Palmer, the co-founder of edible manufacturer Kiva Confections. “You’re always pushed to the side, or treated like a not-legitimate business, so to be deemed essential was a pivotal, historical moment for our industry.”

That essential designation allowed the industry to stay open and keep operating, even at the height of lockdowns. That was fortunate given the sudden surge in demand for cannabis that came as a result of everyone being holed up in their homes with little to do but get high and watch Netflix. 

“There weren’t many other things you could go and do,” says D’Ann Lapenias, who runs Elevated, a dispensary in San Francisco. While restaurants and bars were cratering, Lapenias says her business actually had to start extending its hours to cope with higher demand. 

That surge in cannabis buying was felt all the way up the supply chain. “I have not ever seen such a craze around cannabis. The product was selling before the batches were released from testing,” says Michelle Hackett, president of Riverview Farms, which grows and distributes cannabis products from its home base in Salinas, California. (She hastens to adds that obviously her company wasn’t selling product before it went through state-mandated testing.) 

In order to keep up with increased demand and sales, Hackett says her company’s grow operation added an additional two 40,000-square-foot indoor grow rooms and packed more plants into their existing greenhouses. Production went up about 20 percent, she says.

This isn’t to say it was all upside for the cannabis industry. Cannabusinesses weren’t immune from the increased costs and challenges imposed by the need to socially distance and sanitize.

Palmer says her company had to stop production of their popular churro bar product because the manufacturing process required workers to stand close to each other. Hackett had to change things up by staggering workers’ breaks and lunch hours to accommodate social distancing.

Lapenias says she had to cut her number of registers from six down to four to be in compliance with capacity restrictions. She also had to write a full COVID-19 prevention program.

“It was a lot of learning,” she says, saying that the plan she wrote had to be vetted “line by line” by Elevate’s other owners, the company’s lawyers, and San Francisco’s health department.

Customers and employees had to answer health questions and get temperature checks before entering the store. The company’s HR policies had to be changed to make it easier for employees to stay home even if they felt so much “as a tickle in their throat,” Lapenias said.

There were also no small amount of difficulties that came from being a federally illegal business.

Hackett notes that while a pizza business run by her family was able to make use of federal small business relief loans during the pandemic, her cannabis business wasn’t so lucky. That only made it harder to retain employees given their own coronavirus concerns and the generous relief the federal government was providing to the unemployed.

As an added indignity, Hackett notes that Monterrey County, where her business is located, used cannabis tax dollars to fund a host of relief programs that cannabis businesses weren’t eligible for. 

“All the problems that existed for cannabis businesses before continued, such as lack of access to banking and cashless transactions and other financial services. Their inability to deduct business expenses on their taxes, their ineligibility for [the Paycheck Protection Program] or [Small Business Administration] loans,” says Morgan Fox of the National Cannabis Industry Association (NCIA).

There were a lot of little things during the pandemic that made life harder for cannabis businesses too. The end of in-person industry shows made it harder for Hackett’s company to connect with retail clients, she says. Palmer said getting packaging material from China was a real difficulty for a while. 

Those, of course, were problems faced by a lot of other businesses and industries too. In that way, the pandemic showed how far cannabis had come in making itself a normal industry with normal problems. If only the federal government would see them that way, too. 

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On January 28, 2019, plainclothes narcotics officers broke into a house on Harding Street in Houston and killed all three occupants: Dennis Tuttle, a retired 59-year-old machinist; his 58-year-old wife, Rhogena Nicholas; and their dog. The couple’s families marked the two-year anniversary of that deadly home invasion by filing federal civil rights lawsuits against the city, its police chief, and 13 officers implicated in the operation.

The raid, which was triggered by a phony tip, was based on a no-knock search warrant that Officer Gerald Goines obtained by falsely portraying Tuttle and Nicholas as -dangerous drug dealers. The centerpiece of Goines’ search warrant -affidavit was a fictional heroin purchase by a nonexistent confidential informant. Another narcotics officer, Steven Bryant, backed up Goines’ story. Goines and Bryant eventually were charged with several state and federal crimes, including two counts of felony murder against Goines.

Houston Police Chief Art Acevedo, who hailed the cops who killed Tuttle and Nicholas as “heroes” and 10 months after the raid was still dismissing “the chances of this being systemic,” would like the story to end there: with two bad apples whose lies led to the regrettable but necessary use of deadly force against two people who, in turned out, were not actually heroin dealers. But the lawsuits argue that the blame extends to 11 other cops who helped instigate the raid, executed it, or allowed it to happen; Acevedo, who has never apologized for posthumously defaming Tuttle and Nicholas or given a full explanation of why they died; and the city, which built a moldy barrel where apples were bound to go bad and spread their rot.

The lawsuit filed by Nicholas’ mother and brother says Narcotics Squad 15, which executed the raid, “operated as a criminal organization” that “tormented Houston residents for years.” The officers’ crimes included “search warrants obtained by perjury,” “false statements submitted to cover up the fraudulent warrants,” “improper payments to informants,” “illegal and unconstitutional invasions of homes,” “illegal arrests,” and “excessive force.”

Goines, whom Acevedo initially described as “a big teddy bear” who was “tough as nails” and had “tremendous courage,” worked in narcotics for 25 years. According to news reports and court documents, he routinely lied to obtain no-knock search warrants, framed innocent people, handled evidence recklessly, carried on a sexual relationship with a confidential informant, and stole public money.

Goines was not the only allegedly corrupt officer in Squad 15. Since the Harding Street raid, Harris County District -Attorney Kim Ogg has charged a dozen current or former narcotics officers with felonies, including lies about overtime and drug purchases.

“Houston Police narcotics officers falsified documentation about drug -payments to confidential informants with the support of supervisors,” Ogg said in July. “Goines and others could never have preyed on our community the way they did without the participation of their supervisors; every check and balance in place to stop this type of behavior was -circumvented.”

Acevedo argues that Goines’ colleagues acted in good faith based on a warrant they believed was valid and should not be held responsible for his fabrications. In January, after a Harris County grand jury indicted Officer Felipe Gallegos for murdering Tuttle, Acevedo reiterated his position that the cops “responded appropriately” to the “deadly threat” they encountered after they broke in the door and immediately opened fire, killing the dog with a shotgun.

An independent forensic examination commissioned by the Tuttle and Nicholas families cast doubt on key parts of Acevedo’s story, including the justification for shooting the dog and the claim that Nicholas, who was unarmed, posed an imminent threat. The physical evidence indicates that the cops, who said Tuttle responded to the violent invasion of his home by grabbing a revolver and shooting at the intruders, blindly and wildly fired dozens of rounds. Tuttle—who supposedly fired four rounds, hitting one cop in the shoulder, two in the face, and one in the neck—was frail and disabled, which his family says makes that feat implausible.

Both families argue that the city’s “policies, customs or practices,” including inadequate training and lax supervision, invited Fourth Amendment violations. They say the city has refused to answer basic questions about what happened during the raid, which was not recorded by body cameras. “It’s been two years now,” said John Nicholas, Rhogena’s brother. “We’re not going to quit until we get answers.”

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