Tag: in-the-news

What good is an AR-15 against an oppressive government armed with tanks and bombers? That’s the question gun owners often get asked, as if the destructive power of the modern state is a mic-drop argument against private weapons ownership. That might be a bit more convincing if resistance fighters didn’t repeatedly go up against well-armed troops with whatever weapons they can make or scavenge in hopes of gaining breathing room and forcing change. Sometimes, they even win, and their chances would undoubtedly be better if they had better tools at hand to begin with.

“Every day, when Ko Win Kyaw goes out to demonstrate against the Myanmar military, he carries his slingshot and a supply of rocks as ammunition,” Richard C. Paddock reported for The New York Times on April 17. “What began as peaceful protests after the Feb. 1 coup rapidly grew into a resistance movement, with citizens defending themselves using slingshots, homemade air guns, old hunting rifles and firebombs.”

Despite endorsement for resistance efforts from the pro-democracy shadow government facing off against the ruling junta, Reuters emphasized that a loosely organized group “[a]rmed with a few hunting guns made by village blacksmiths, catapults, some airguns and Molotov cocktails … were no match for forces hardened by decades of conflict and equipped with combat weapons.”

But, despite the paucity of their arms and training, the fighters gave government forces a day-long battle. They had to turn, at least for the time being, to makeshift weapons because the regime spent years trying to keep the population disarmed so that it wouldn’t have to face serious resistance.

“In Myanmar, civilians are not allowed to possess any firearms,” notes the University of Sydney’s GunPolicy.org.

“There were gun licenses issued under the [totalitarian Burma Socialist Program Party, or BSPP] government starting from 1977 but only to those who were fully-fledged party members and serving on duty in BSPP,” according to The Irrawaddy, which covers news in the region. “But after the 1988 pro-democracy uprising, [the military] revoked gun licenses and recalled guns.”

Denied legal access to guns by a brutal government that feared resistance, the people of Myanmar are still willing to fight, but must scrounge the tools for doing so where they can be found.

“We have no choice but to arm ourselves,” one activist told the U.K.’s Sunday Times.

Pro-democracy protesters in Hong Kong found themselves in a similar situation when China moved to crush the liberties of the semi-autonomous region.

“Hong Kong protesters shot bows and arrows and hurled petrol bombs from a barricaded university campus on Sunday, as police charged and charged again, firing tear gas and blue liquid from water cannon after fiery clashes overnight,” CNBC reported in 2019. “Parts of the Hong Kong Polytechnic University campus looked more like a fortress with barricades and black-clad protesters manning the ramparts with improvised weapons-like bricks, crates of fire bombs, and bows and arrows at the ready.”

Civilian firearms ownership isn’t entirely banned in Hong Kong, but it is severely restricted and rules were tightened in 1999, after the handover of the territory by Britain to China. Hong Kong’s pro-democracy protesters clearly understand their disadvantage, since at least some have waved signs reading, “We need the 2nd Amendment.”

But Hong Kong residents don’t have legal protections for their right to bear arms, and the pro-democracy movement has faltered under the weight of government force. Headlines now focus on the jailing of activists rather than street protests. Maybe that’s support for the argument that resistance is futile against the modern state.

“[I]t would be a short war my friend,” Rep. Eric Swalwell (D-Calif.) snorted in 2018 to a critic promising to defy gun restrictions. “The government has nukes,” he added, raising the prospect of U.S. forces incinerating all of Phoenix or Houston to suppress guerrillas intermingled with the population.

Domestic atomic warfare seems unlikely, though, given that the U.S. never nuked Afghanistan despite two decades of continuing conflict. Nor did the rest of America’s modern arsenal ultimately prevail against insurgents largely armed with variants of the AK-47, Russia’s counterpart to the AR-15.

“There has been no cease-fire agreement and high levels of insurgent and extremist violence continued in Afghanistan this quarter despite repeated pleas from senior U.S. and international officials to reduce violence in an effort to advance the peace process,” the Special Investigator General for Afghanistan Reconstruction’s 50th quarterly report to Congress noted earlier this year.

“We cannot continue the cycle of extending or expanding our military presence in Afghanistan — hoping to create ideal conditions for the withdrawal and expecting a different result,” President Joe Biden conceded on April 14, as he announced an end to America’s role in the country.

This isn’t to say the Taliban are a sympathetic bunch. Their brutality and authoritarianism make them anything but freedom fighters. But they proved their effectiveness, at great cost, against a modern military force. Pro-democracy forces in Myanmar, Hong Kong, and elsewhere might hope for similar hope of success (though they’d no doubt want a shorter, less-bloody conflict). Their chances would certainly be improved with access to weapons like the AR-15.

True, the United States isn’t Myanmar, nor is any part of it under the thumb of something like China’s totalitarian regime. But just months ago Rep. Eric “the government has nukes” Swalwell insisted that “democracy is under assault” from departing President Donald Trump. Last year, then-presidential candidate Joe Biden insisted his opponent “further threatens the future of our democracy.” They clearly believe—with considerable evidence, though their faction shares blame—that America’s political system isn’t as secure as we like to pretend, and that it risks falling into authoritarian hands.

Just in case their fears come true, people worried that authoritarianism will come to America might want to learn from pro-democracy activists elsewhere. That requires treating efforts at civilian disarmament as even more reason to keep the tools for self-defense close to hand.

from Latest – Reason.com https://ift.tt/3sDQjII
via IFTTT

4/21/1800: Justice Alfred Moore takes judicial oath.

from Latest – Reason.com https://ift.tt/3elzux7
via IFTTT

Last fall South Dakota became the first state to simultaneously approve legalization of medical and recreational marijuana. The success of the broader ballot initiative, which passed with support from 54 percent of voters, was especially surprising because the state is mostly Republican and largely conservative. But while voters were ready to legalize marijuana, Gov. Kristi Noem was not. Thanks to a legal challenge backed by Noem, the initiative has been blocked, and it may never take effect.

Seventeen days after the election, Pennington County Sheriff Kevin Thom and Col. Rick Miller, superintendent of the South Dakota Highway Patrol, filed a lawsuit arguing that the marijuana legalization initiative, known as Amendment A, violated the state constitution’s restrictions on voter-approved amendments. Noem later said Miller was acting at her direction. In February, Sixth Judicial Circuit Judge Christina Klinger agreed with Thom, Miller, and Noem, ruling that the initiative violated the “single subject rule” and amounted to a “revision” of the state constitution, which requires a constitutional convention, rather than an amendment.

On the first point, Klinger concluded that Amendment A improperly “embrace[d] more than one subject” because it dealt with industrial hemp as well as marijuana, allocated the proceeds of a marijuana excise tax, created civil penalties for certain marijuana offenses, and barred disciplinary action against licensed professionals for advising the cannabis industry. In her view, these provisions “are not reasonably germane to the legalization of marijuana.”

On the second point, Klinger noted that “the South Dakota Supreme Court has never directly ascertained the difference between an amendment and a revision.” But based on decisions from other states, she concluded that the distinction depends on “the quantitative and qualitative aspects of the enactment.” Although Amendment A “is not a drastic rewrite of the South Dakota Constitution,” she said, it makes “far-reaching changes to the nature of South Dakota’s governmental plan” by restricting the powers of the governor and the legislature with respect to marijuana. It “is therefore a revision.”

Because of those defects, Klinger said, the initiative is “void and has no effect.” South Dakotans for Better Marijuana Laws, the organization that backed Amendment A, has appealed Klinger’s decision to the South Dakota Supreme Court, where oral arguments are scheduled for April 28. An amicus brief filed in support of the appeal by the Cato Institute (and joined by Reason Foundation, which publishes Reason) argues that blocking Amendment A defies the will of voters and undermines federalism.

“This case arises from the efforts of state officials who, having vehemently disagreed with the substance of Amendment A but having failed to persuade the state’s electorate to adopt their views, now seek to set aside the will of the voters and to overturn the constitutional provisions endorsed and enacted by South Dakotans,” the Cato brief says. “This case implicates matters of central concern to amici, not least the interests of all citizens to advance laws that indisputably increase their individual liberties and freedoms even when doing so diverges from the policies, preferences and practices of the federal government.”

Noem praised Klinger’s decision. “Amendment A is a revision, as it has far-reaching effects on the basic nature of South Dakota’s governmental system,” she said. “Today’s decision protects and safeguards our constitution. I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.”

Noem’s determination to block Amendment A seems to be driven more by her anti-pot prejudices than by her commitment to upholding the abstruse rules governing amendments to the state constitution. “I was personally opposed to these measures and firmly believe they’re the wrong choice for South Dakota’s communities,” she said after voters approved the medical and recreational marijuana initiatives. “We need to be finding ways to strengthen our families, and I think we’re taking a step backward in that effort. I’m also very disappointed that we will be growing state government by millions of dollars in costs to public safety and to set up this new regulatory system.”

State legislators proved more willing to set aside their personal views on marijuana in deference to the policy preferred by voters. “In my mind, [legalization is] inevitable because we’ve already seen the support from the public,” Senate Majority Leader Gary Cammack said after Klinger’s decision. “I didn’t vote for recreational marijuana, but my constituents did,” added Greg Jamison, another Republican senator. “Rarely do we get a chance to enact a law and not for sure know what our constituents think of that. Here we know.”

In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. She also has tried, unsuccessfully so far, to stop the medical marijuana initiative from taking effect.

More recently, Noem suggested she might be open to decriminalizing low-level marijuana possession. A proposed bill that she was mulling last month would make possession of an ounce or less, currently a misdemeanor punishable by a maximum fine of $2,000 and up to a year in jail, a petty offense, punishable only by a civil fine, for adults 21 or older. Repeat offenses would remain misdemeanors, although the maximum penalties would be less severe: a $200 fine and 30 days in jail. The Sioux Falls Argus Leader reports that Noem’s chief of staff “said the governor isn’t necessarily in support of the draft proposal.”

Amendment A, by contrast, would eliminate all penalties for adult possession or sharing of an ounce or less while authorizing the licensing and regulation of commercial suppliers. Adults also would be allowed to grow their own pot if they happened to live in a jurisdiction with no licensed retailers. Kristi Noem is not ready for that world, although she might be willing to support a decriminalization policy that was at the cutting edge of marijuana reform in the 1970s.

from Latest – Reason.com https://ift.tt/3tyToey
via IFTTT

A novel cannabis drug is popping up in cities across the U.S., eliciting concern from members of the cannabis and hemp industries, state legislators, and a chemist who reviews cannabis drugs for safety. While the newly popular compound of delta-8-THC is not expressly prohibited by the Controlled Substances Act, people I spoke to are concerned that it is being produced unsafely and not receiving the same scrutiny that regulators apply to legal marijuana. 

The arrival of delta-8-THC—which is being sold in various places as a tincture, in vape pens, added to food, and sprayed on hemp flower so that it can be smoked—coincided with the passage of the 2018 Farm Bill, in which Congress repealed the federal prohibition on hemp and its byproducts. While delta-8-THC occurs in only trace amounts in hemp and cannabis, it can be synthesized from CBD isolate, the main commercial compound derived from hemp plants. 

After the farm bill passed, investment flooded into the hemp industry based on the expectation that it would be only a matter of time until farmers could sell hemp products as nutritional supplements. 

“Everyone anticipated that big grocery and pharmacy retailers would line their shelves once hemp and CBD were legal,” Jim Higdon, owner and founder of Cornbread Hemp in Kentucky, tells Reason. But selling to national grocery and pharmacy retailers hinged on the Food and Drug Administration (FDA) classifying hemp-derived CBD, short for cannabidiol, as a nutritional supplement. Instead, the FDA explicitly declared that CBD could not be sold as a nutritional supplement. 

“The CBD industry in 2017 and 2018 had this rush with people wanting to get in,” says Eric Steenstra, president of Vote Hemp. “In 2018, we had about 3,500 licenses for growers in the U.S. In 2019, we had over 19,000 licenses for growers.” Then, when the FDA made it clear that hemp-derived CBD could not be marketed as a nutritional supplement, “you had all these people producing all this CBD, and there were suddenly way more producers than purchasers,” Steenstra says. The prices of hemp and hemp-derived CBD isolate plummeted and remain low. “Lots of people couldn’t sell their hemp flower and a lot of producers were sitting on CBD isolate trying to figure out what to do with it.”

That’s when some enterprising chemist found that CBD isolate could be synthesized into delta-8-THC, a cousin of delta-9-THC. While delta-9, the main psychoactive ingredient in cannabis, is prohibited by the Farm Bill and the Controlled Substances Act, neither piece of legislation mentions delta-8. Though it’s not inherently dangerous, says Christopher Hudalla, the founder and chief science officer of ProVerde Laboratories, which provides testing services to state-legal cannabis businesses in Massachusetts and Maine, Hudalla has yet to test a delta-8-THC product that contains only delta-8. 

When he first saw products containing delta-8-THC in 2018, Hudalla says, “I thought, ‘This is cool, this is novel.’ But then I was like, ‘What do we know about this?'”

The products Hudalla tested contained delta-8-THC, but also other THC isomers as well as chemical byproducts. “These byproducts are not found in nature. Chemists are using very, very strong reagents—strong acids, strong bases. If you don’t know what you’re doing, it’s very possible to pass along some of those reagents to your customer.”

Hudalla looked at numerous samples, finding not only chemical byproducts unfit for consumption but also chemical isolates he couldn’t identify. He says that when pharmaceutical companies produce a drug and can’t get rid of all the chemical byproducts, they are required to prove that the byproducts are safe. The delta-8 producers he’s spoken with, many of whom are using unsophisticated labs, do not have the resources or the know-how to conduct those studies.  

Hudalla couldn’t tell his clients that their delta-8-THC products were pure, so he wrote lab reports for them declaring that the products were not fit for human consumption. The decision has cost him business, and many producers have simply shopped for a lab that will write them a purity report they like. But he stands by the decision, citing lessons learned from the wave of lung injuries caused in recent years by THC vape pens sold on the black market. “I don’t want to be responsible for someone hurting someone else, and I don’t want a certificate of safety with my name on it found in a DEA bust,” Hudalla says. 

Steenstra is equally concerned that some members of the hemp industry have turned to producing delta-8-THC. “These products are being produced who knows where, under who knows what conditions,” Steenstra says. “There’s been no research into whether delta-8-THC products are safe.” 

Like Higdon, Steenstra is frustrated that the FDA refuses to roll up its sleeves and do the work of regulating hemp and CBD products as nutritional supplements. “These products are not being regulated by the FDA, but they should be,” Steenstra says. “There are lots of good companies making good products, but they’re doing it voluntarily. Which means there’s a lot of poor-quality stuff out there as well.” The thinking among hemp advocates is that smart regulations would give the hemp industry a path toward commercial viability, stabilize prices, and discourage the diversion of CBD isolate toward grey and black market delta-8-THC products.  

The adult-use cannabis industry is also concerned about the rise of delta-8-THC. “Very little is known about the health effects of delta-8 and almost all current production is entirely unregulated,” says Morgan Fox, media relations director for the National Cannabis Industry Association. “Until we know more about delta-8, its production and sale should be regulated just like delta-9 under existing state cannabis licensing and oversight systems.”

Fox also says that prohibition in general, not just the FDA’s refusal to regulate hemp, is driving the delta-8-THC trend. “Keeping delta-9-THC—which is naturally present in cannabis at usable levels and has a long history of research and longitudinal data showing its relative safety—either illegal or so heavily regulated that it becomes prohibitively expensive for consumers creates an unnecessary demand for alternative inebriating cannabinoids. We are seeing that even though there is some limited demand for delta-8 in states with regulated cannabis markets, the vast majority of interest is in prohibition states.”

While many defenders of delta-8 insist that it’s perfectly legal under federal law, no one I spoke with thinks the legality is the most pressing issue. “It scares me that hemp is being marketed this way. It’s a black eye for the hemp industry,” Steenstra says. “If you go to a dispensary in a state where medical or recreational cannabis is legal, it’s tested for everything and comes with a data sheet. In places where it’s not legal, you’re buying delta-8 at a gas station and have no idea.”

No one I spoke to objected to the creation of a novel cannabis compound, they just don’t want to harm consumers or erase the goodwill they’ve accumulated by submitting to regulation and oversight. “If someone can produce a delta-8 product that is actually delta-8 and not a garbage product, I don’t have a problem with that,” Hudalla adds. “That’s a regulatory issue. As of right now, we’re using consumers as guinea pigs.”

from Latest – Reason.com https://ift.tt/3nb1Eir
via IFTTT

One Loveland, Colorado, police officer has been put on paid leave and another moved to desk duty after a 73-year-old woman sued the department for an arrest in which her attorney says she suffered a broken arm, dislocated shoulder and sprained wrist. The attorney says the woman has dementia. Staff at a local Walmart called cops after Karen Garner reportedly tried to shoplift $13.88 in merchandise. Garner left without the merchandise. Body cam footage shows Officer Austin Hopp calling to her outside the store. When Garner refused to speak to him, he grabbed her and threw her to the ground. As Garner repeatedly says “I am going home,” Hopp and Officer Daria Jalili handcuff her.

from Latest – Reason.com https://ift.tt/2QJEZxu
via IFTTT

Since writing my two posts about Justice Barrett’s book deal, I have been reliably informed that the description from Politico was incorrect. Two people independently told me that the book will not be about “how judges are not supposed to bring their personal feelings into how they rule.” Rather, they said, the book will be a collection of letters Justice Barrett wrote to correspondents during the confirmation process. Going forward, I will assume this account is correct–and I have every reason to believe it is. At this point, Sentinel, the conservative imprint, should issue a press release to announce the book, and describe the project. Ideally, the release would include some quote from Justice Barrett herself. Knopf issued such a release for Justice Sotomayor’s memoir in 2010.

This episode illustrates the pitfalls of a Supreme Court justice writing a book. Much of my negative commentary here is likely informed by my experience with book publishers. And I think that background will shed some light on my critical posts.

I’ve worked with a popular press, an academic press, and a trade press. Perhaps the greatest advantage of an academic press is they are the least interested in selling books. The goal of an academic press is to spread influential ideas. Maybe those books will be sold to libraries, and have some course adoptions. Thankfully, expectations are low. For that reason, the advances are small (or $0) and the royalties are tiny. Yet, academic publishers provide authors–generally professors–with the greatest autonomy and latitude. When I worked with Cambridge University Press, I never felt the slightest pressure to produce a certain type of book for a certain audience. There were no efforts to trim the size of the book–Unraveled ballooned to nearly 600 pages. Nor was there any attempt to influence how I marketed the book. The process was entirely hands-off. Of course, that meant that not that many books were sold. But I knew those details going in. (And thankfully, I greatly exceeded Cambridge’s low expectations).

The popular press was an entirely different experience. The goal of a popular press is to sell as many books as possible. Full stop. And that demand exerts a lot of pressure on the authors. My first book, Unprecedented, was published with a popular press. On the whole, the experience was positive. But throughout the process, I felt pressure to produce a more edgy book that will appeal to conservative buyers. I resisted that pressure, because I wanted to write a more neutral book that would be the definitive account of NFIB v. Sebelius.

An anecdote will illustrate these dynamics. From the beginning, I wanted the title to be “Unprecedented.” It encapsulated in a word the constitutional arguments in the ACA litigation. At one point, I joked with my editor that we could call the book The People v. Obamacare. I was riffing on The People v. Larry Flynt. (Which, by the way, has one of the most realistic SCOTUS scenes in any move I’ve watched; the Justice Scalia actor read the question from the transcript, almost verbatim). My editor loved this farcical title. Indeed, he sent a book notice with that title to Amazon! I was furious. That title would convey a very different message, and not at all appeal to the market I wanted to target. We had a huge fight, and I threatened to cancel the entire project, walk away, and return the advance. (A good rule of thumb: never begin any project unless you are really willing to walk away). Finally, the editor relented and we went with my preferred title.

Later in the process, I delivered the finally manuscript. The editor said it was 25,000 words too long. Yes, I actually had to delete the equivalent of a law review article. Trashed. Plus I had to completely rewrite the ending to make it more edgy. Some of the suggestions were helpful. But I was not fully satisfied with the revised ending. It is the weakest part of the book, in my estimation. And so on. My point is that popular presses have very specific expectations. Law review editors fight over picayune footnotes, but generally let authors write their own books. Popular presses take a much more hands-on approach.

That background brings me to conservative imprints. While I was shopping the proposal for Unprecedented, I spoke with an editor at a famous conservative imprint. (If I said his name, you would know it). We had a really friendly chat, where he told me exactly what he expected. He wanted a book that would appeal to the then-booming Tea Party audience, and get me booked on Fox News. He wanted something that would savage President Obama as a lawless autocrat, and attack the ACA as a socialist takeover of health care. I had no interest in writing that book, and I did not pursue that option.

Sentinel, the conservative imprint Justice Barrett signed with, is in the same ballpark as the imprint I spoke with. Sentinel is currently featuring books by Allie Beth Stuckey, Dave Rubin, and Jordan Peterson. (If you don’t know who these people are, google them.) These books are targeting a very specific conservative audience. Now I don’t think an editor would try to push around Justice Barrett, the way I was pushed around. But the relationship can be distorted in different ways. Specifically, the publisher has latitude to market the book in ways that may not cohere with Justice Barrett’s direction.

Take the quote given to Politico. It is possible that someone from Sentinel gave it to a journalist. That unnamed sources may have been misinformed about Barrett’s book. Or, the sources may have been trying to pump up the book to appeal to more buyers. (A book of letters sounds lovely, but would not offer any insights into ACB’s judicial decision-making process.) It’s also possible the Politico sources did not work for Sentinel. Maybe even a flak at a competitor leaked the quote. Who knows?

But here we are, arguing over the content of a book deal for the newest member of the Supreme Court. How to resolve this impasse? Does the Court’s PIO office release a statement? Of course not. Does Justice Barrett start tweeting? Lord no. Instead, the publisher should issue a press release. (My suggestion at the top of the post). And Justice Barrett should be much more active in the press materials to avoid any future errors. Yet, herein lies the dilemma.

Why should a Supreme Court justice be wasting her time on these sort of mundane matters? There are so many more important things to be done. Read more cert petitions. Write more statements concerning the denial of certiorari. (I really respect Justice Sotomayor’s attention to the docket). Write more concurrences expounding on the original meaning of the Constitution. All of those tasks would actually advance the law. Spending time to write, and publish a book that is a collection of letters? That should not be a priority now. In a decade, write an opus like Reading Law or A Matter of Interpretation. At that point, there will be 17 Justices (the next prime number after 13), the Court’s jurisdiction will be substantially stripped, so the workload should be lower.

This realization brings me to my final point. The federal courts impose very strict rules on outside sources of income. And the Supreme Court seems to follow this rule as a matter of practice. For example, judges are allowed to teach, but usually cannot earn more than about $20,000 per year. That’s about it. Yet book advances and royalties are trapped in some sort of ethical black hole. A publisher is a for-profit concern. During the terms of a book contract, the Supreme Court justice works for the publisher. It is a traditional principal-agent relationship. In my prior post, I identified the inherent conflict of interests between writing opinions that appeal to conservatives and selling books that appeal to conservatives. These conflicts are not allowed to exist in any other context. But, for whatever reason, book contracts are exempt.

I think there is only way to cure this problem: a cap on annual royalties and book advances. Perhaps pegged to the same amount as teaching gigs. Any royalties or advances above that amount can be donated to charity. (RBG routinely donated prizes she received to charity). Or deposit the money in the United States Treasury. Wherever. But Justices should not be able to use the prestige of their office to sell books to the public, and in doing so create inescapable conflicts of interests. (And don’t try to tell me that a book royalty is an emolument–I know Justice Breyer has sold his books abroad.). No other government employee can write a book while in office. Then again, most government employees lack life tenure. Here, I am unsympathetic. There are plenty of ways for lawyers to make lucrative careers. Serving on the Supreme Court is not one of those ways. The Nine know what they are getting themselves into.

I am generally skeptical of most efforts to “reform” the Court, but this proposal should be given consideration.

from Latest – Reason.com https://ift.tt/3v4y4hm
via IFTTT

When Texas Gov. Greg Abbott, a Republican, lifted his statewide face mask mandate and his limits on business occupancy in early March, Democrats warned that he was inviting a public health disaster. Yet a month and a half later, newly identified coronavirus cases in Texas have fallen by more than 50 percent, and daily deaths have dropped even more.

Meanwhile, states with stricter COVID-19 regulations have seen spikes in daily new cases. This is not the pattern you would expect to see if government-imposed restrictions played a crucial role in curtailing the pandemic, as advocates of those policies assume.

Abbott’s critics did not mince words. President Joe Biden said the governor’s decision reflected “Neanderthal thinking.” Gilberto Hinojosa, chairman of the Texas Democratic Party, said it was “extraordinarily dangerous” and “will kill Texans.”

One reason those dark prophecies have not come true: The practical impact of Abbott’s changes was much less significant than his detractors implied.

Most businesses in Texas had been allowed to operate at 75 percent of capacity since mid-October, when Abbott also allowed bars to reopen. It was implausible that removing the cap would have much of an impact on virus transmission, even in businesses that were frequently hitting the 75 percent limit.

While Abbott said Texans would no longer be legally required to cover their faces in public, he urged them to keep doing so, and many businesses continued to require masks. At the stores I visit in Dallas, there has been no noticeable change in policy or in customer compliance.

Conversely, face mask mandates and occupancy limits did not prevent COVID-19 surges in states such as Michigan, where the seven-day average of newly confirmed infections has risen more than fivefold since March 1; Maine, which has seen a nearly threefold increase; and Minnesota, where that number has more than doubled. Cases also rose during that period, although less dramatically, in other states with relatively strict COVID-19 rules, including Delaware, Maryland, Massachusetts, New Jersey, Pennsylvania, and Washington.

Florida, a state often criticized as lax, also has seen a significant increase in daily new cases: 34 percent since mid-March. But Florida, despite its relatively old population, still has a per capita COVID-19 death rate only a bit higher than California’s, even though the latter state’s restrictions have been much more sweeping and prolonged.

In any event, COVID-19 surges are happening mainly in states with more legal restrictions than Florida or Texas is imposing. The Washington Post nevertheless says “experts…agree” that rising infection numbers are largely due to “a broad loosening of public health measures, such as mask mandates and limits on indoor dining”—a claim that is tenable only if you ignore all the countervailing examples.

States differ from each other in various ways that may affect the spread of COVID-19, of course, so you can learn only so much from comparisons like these. But several systematic studies have cast doubt on the effectiveness of broad legal restrictions.

While some researchers have concluded that lockdowns had an important impact, others say there is little or no evidence that they affected mortality rates or trends in cases. According to a Nature Human Behaviour study of 226 countries published in November, “a suitable combination of NPIs [nonpharmaceutical interventions] is necessary to curb the spread of the virus,” but “less disruptive and costly NPIs can be as effective as more intrusive, drastic ones (for example, a national lockdown).”

In a 2020 National Bureau of Economic Research paper, UCLA economist Andrew Atkeson and two other researchers looked at COVID-19 trends in 23 countries and 25 U.S. states that had seen more than 1,000 deaths from the disease by late July. After finding little evidence that variations in public policy explained the course of the epidemic in different places, they concluded that the role of legal restrictions “is likely overstated.”

That much seems safe to say in light of more recent experience in the United States.

© Copyright 2021 by Creators Syndicate Inc.

from Latest – Reason.com https://ift.tt/32vpzjh
via IFTTT

“You can believe your own eyes,” prosecutor Steve Schleicher told jurors during his closing argument in former Minneapolis police officer Derek Chauvin’s murder trial yesterday. “This case is exactly what you thought when you saw it first, when you saw that video.”

Schleicher was referring to the horrifying bystander video showing Chauvin pinning George Floyd facedown to the pavement for nine and a half minutes, an incident that provoked nationwide protests against police brutality. The jury’s decision to convict Chauvin of all three murder and manslaughter charges against him after deliberating for 10 hours reflects not just the emotional impact of that video but also the logical force of the case the prosecution presented in two weeks of testimony.

While the defense repeatedly speculated about other factors that might have contributed to Floyd’s death, including his heart disease and his drug use, there was never any real doubt that he would have survived this encounter if Chauvin had handled it differently. Defense attorney Eric Nelson implicitly conceded as much when he argued, in a pretrial motion, that Floyd “may have survived” if Officers J. Alexander Kueng and Thomas Lane, who arrested Floyd for using a phony $20 bill to buy cigarettes, “had chosen to de-escalate instead of struggle.” That suggestion implied that the ensuing use of force killed Floyd.

Nelson’s lone medical witness, forensic pathologist David Packer, rejected the prosecution’s argument that Floyd  died from asphyxia, describing the cause as a “sudden cardiac arrhythmia.” Yet Fowler cited “the very stressful situation” created by the prolonged prone restraint as an important factor, which hardly let Chauvin off the hook.

The prosecution’s medical witnesses, including Hennepin County Chief Medical Examiner Andrew Baker, all agreed that the use of force caused Floyd’s death. Chicago pulmonologist Andrew Tobin explained in detail how being pressed against the pavement by Chauvin’s knees and the other officers’ hands would have made it impossible for Floyd to breathe properly. Tobin was highly credible and unflappable, and his testimony reinforced the commonsensical supposition that a man who complains 27 times that he can’t breathe while being squeezed between three cops and the asphalt might actually be having trouble breathing.

Other expert witnesses explained why neither heart disease nor drug use were plausible explanations for Floyd’s death. And although Baker did not mention asphyxia in his autopsy report, on the stand he did not rule out the possibility that impeded breathing contributed to Floyd’s “cardiopulmonary arrest,” saying, “I would defer to a pulmonologist.”

To prove causation, the prosecution needed only to persuade the jury that Chauvin’s actions were “a substantial causal factor” in Floyd’s death. “The fact that other causes may have contributed to George Floyd’s death does not relieve the defendant of any criminal liability,” Schleicher noted. “He’s criminally liable for all of the consequences of his actions that naturally occur, including those consequences brought about by intervening causes.” The alternative to concluding that Chauvin killed Floyd was to believe that Floyd just happened to die from other, unrelated causes under Chauvin’s knee.

As for whether Chauvin’s use of force was justified, several supervisors (including the police chief) and use-of-force experts concluded that it was not. They said Chauvin’s conduct violated his training, department policy, and the Fourth Amendment.

Against that judgment, Nelson offered only the testimony of Barry Brodd, a former police officer who preposterously claimed that pinning Floyd to the pavement for nine and a half minutes did not even qualify as a use of force. Brodd also averred that “drug-influenced” suspects “don’t feel pain” and “may have superhuman strength”—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

While Brodd claimed that Floyd was “somewhat resisting” even after he was pinned to the ground, his definition of resistance was broad enough to encompass writhing in pain and struggling to breathe. And even by Brodd’s account, the resistance lasted for “a couple of minutes,” leaving unexplained the continued use of force during the next seven and a half minutes, when Floyd stopped talking and moving, became unresponsive, and seemed to lose consciousness.

Even after Floyd no longer had a detectable pulse, Chauvin kept kneeling on him. “How can you justify the continued use of force against this man when he has no pulse?” Schleicher wondered.

Chauvin chose not to take the stand, which would have given him an opportunity to answer that question but also would have exposed him to a potentially brutal cross-examination. Without hearing from Chauvin, the jurors were left with Nelson’s description of the factors that figured in Chauvin’s thinking, which amounted to little more than fears about what Floyd might have done to pose a threat, as opposed to what he actually did.

“The standard is not what should the officer have done in these circumstances,” Nelson said. “Officers are human beings capable of making mistakes in highly stressful situations.” But when those “mistakes” go beyond what a “reasonable officer” would do in similar circumstances, the use of force is unlawful. Try as he might, Nelson was unable to persuade the jury that a reasonable officer would have done what Chauvin did.

Chauvin’s actions easily fit the definition of second-degree manslaughter, which required showing that he caused Floyd’s death “by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm.” The maximum penalty for that count is 10 years in prison, but the presumptive sentence under Minnesota’s sentencing guidelines is four years.

To prove the second-degree murder charge, prosecutors had to show that Chauvin unintentionally killed Floyd while committing a felony—in this case, third-degree assault. The assault charge, in turn, required proving that Chauvin “intentionally applied unlawful force” and thereby inflicted “substantial bodily harm.”

The jurors could have rejected the assault charge, and therefore the felony murder charge, if they believed that Chauvin did not knowingly use unlawful force. But they clearly believed his conduct went beyond negligence, a conclusion supported by all the testimony that he failed to follow his training and blatantly flouted department policy. As Schleicher put it, “He knew better. He just didn’t do better.”

Minnesota law is unusual in not requiring that the underlying offense for felony murder be distinct from the conduct that caused the victim’s death. That questionable quirk allows prosecutors to charge an unintentionally lethal assault as murder rather than manslaughter, which dramatically increases the potential penalty. The maximum penalty for felony murder is 40 years, and the presumptive sentence is 150 months, or 12.5 years.

The presumptive sentence for third-degree murder is the same, although the maximum (25 years) is shorter. That count required proving that Chauvin killed Floyd by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” A “depraved mind” means Chauvin showed “reckless and wanton unconcern and indifference.”

That seems like a pretty apt description, given the way Chauvin reacted to Floyd’s distress, concerned bystanders’ warnings that Floyd’s life was endanger because he was not getting enough oxygen, Lane’s suggestion that Floyd should be rolled onto his side, Lane’s observation that “he’s passing out,” and Kueng’s report that he could not find a pulse. None of that information persuaded Chauvin to lift his knee or to perform CPR. Instead he responded with what can only be described as callous indifference.

The third-degree murder charge is legally controversial. Some case law suggests it is appropriate only when a defendant’s dangerous conduct did not target any particular individual, as when someone blindly fires a gun into a crowd.

Contrary to that view, former Minneapolis police officer Mohamed Noor, who fatally shot Justine Damond in 2017 after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder (as well as second-degree manslaughter) in 2019. In February, the Minnesota Court of Appeals upheld Noor’s conviction, and last month it cited that decision when it ordered Hennepin County District Court Judge Peter Cahill to reconsider his dismissal of the third-degree murder charge against Chauvin. While the Minnesota Supreme Court declined to review the appeals court’s order in Chauvin’s case, it has agreed to hear Noor’s appeal.

Depending on the outcome of that case, Chauvin’s third-degree murder conviction may not stand. But that probably would not affect the length of Chauvin’s sentence, assuming the felony murder conviction holds up. Both offense carry a presumptive 150-month sentence, which is what Noor received.

from Latest – Reason.com https://ift.tt/2PaZ6o6
via IFTTT

It is not every day one reads an appellate opinion that cites polling data off the internet to criticize the laws the court is obligated to enforce. Today, in Lopez-Soto v. Garland, the U.S. Court of Appeals for the Sixth Circuit did just that. More broadly, the opinion by Senior Judge Martha Daughtrey includes an unusually aggressive critique of U.S. immigration policy, which may explain why the opinion was unpublished.

Judge Daughtrey’s opinion begins:

In an era in which it is difficult to find any issue upon which a large percentage of Americans agree, few people would dispute that our nation’s immigration system is broken and is need of a structural overhaul. Admittedly, a not insignificant number of Americans believe that any change to our immigration statutes should result in shutting our borders to almost all individuals, or at least to all potential immigrants who are not blond-haired and blue-eyed. A June 2020 survey by the Pew Research Center found, however, that approximately 74% of people surveyed felt that our immigration laws should be amended to provide legal status to the approximately 650,000 individuals now in the United States who were brought illegally to this country as children. See pewresearch.org/facttank/2020/06/17/americans-broadly-support-legal-status-for-immigrants-brought-to-the-u-sillegally-as-children/ (last visited Apr. 2, 2021). That same study further found that approximately 75% of the surveyed individuals supported a pathway to legal status for the approximately 10.5 million other immigrants who now reside in the United States without recognized legal status. Id.

Until the immigration system is reformed, however, individuals like petitioner Imelda Lopez-Soto—who has resided in this country for 21 consecutive years, who has remained employed and paid her federal income taxes when required, who has committed no crimes other than driving on a revoked license, and who has given birth to and raised two admittedly outstanding young boys who are United States citizens—remains subject to removal to a country from which she fled for greater opportunity and for a chance to participate in the so-called American Dream. She now petitions this court for review of a decision of the Board of Immigration Appeals (BIA) that denied her requests for withholding of removal, protection under the United Nations Convention Against Torture (CAT), and cancellation of removal. Constrained by precedent and by our immigration laws as they now exist, we must deny her petition.

Judge Karen Moore joined the opinion.

Judge Amul Thapar was also on the panel. He wrote separately, noting he concurred in the result. His brief opinion reads:

I have my doubts about the wisdom of courts opining on hot-button political issues or the motives of citizens who hold one position or another in those debates. And as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.

Thus, I respectfully concur only in the judgment.

from Latest – Reason.com https://ift.tt/3xdif9R
via IFTTT

I wrote about this several months ago, but several states have gone stand-your-ground since then—Ohio, Arkansas, and now North Dakota—so I thought I’d repeat it.

[A.] The “duty to retreat” is something of a misnomer (though a very common one); it’s not actually a legally binding duty (the way a parent has a duty to support a minor child, or a driver has a duty to exercise reasonable care while driving). Rather, it’s a provision that, under certain circumstances, failing to retreat from a confrontation will effectively strip you of your right to use deadly force for self-defense.

To see how it works, let’s first set aside situations where you may not use deadly force for self-defense regardless of whether you’re in a stand your ground state:

1. You generally can’t use deadly force for self-defense in most states unless you reasonably believe that you’re facing the risk of death or serious bodily injury or some serious crime: rape, kidnapping or, in some states, robbery, burglary, or arson.
2. In particular, you can’t use deadly force purely in retaliation, once any threat has passed.
3. Nor can you use deadly force against a simple assault, unless you reasonably believe that you’re facing the risk of death or serious bodily injury.
4. You often can’t use deadly force merely to protect property, but it’s complicated.
5. You generally can’t use deadly force where you are yourself engaged in the commission of a crime (e.g., if you’re robbing someone and he fights back, you can’t “defend” yourself against him).
6. You generally can’t use deadly force if you attacked the victim or deliberately provoked the victim with the specific purpose of getting the victim to attack or threaten you.

Now let’s set aside situations where you may use deadly force for self-defense, again regardless of whether you’re in a stand your ground state:

1. You reasonably believe that you’re facing the risk of death etc. (see above) and you can’t retreat with complete safety. This would cover most situations where, for instance, you’re facing an attacker who has a gun, since one generally can’t safely retreat from a gun.
2. You reasonably believe that you’re facing the risk of death etc. and you’re in your home, or (in some states) on other property that you own or in your vehicle or in your workplace. At least the “home” aspect of this is often called the Castle Doctrine, on the theory that your home is your castle.

So what does that leave for the duty-to-retreat / stand-your-ground debate?

1. You reasonably believe that you’re facing the risk of death etc.
2. You’re outside your home (or similar place).
3. You’re not committing a crime, and you aren’t the initial aggressor, and (generally speaking) you are where you are legally entitled to be.
4. In duty-to-retreat states, you are not legally allowed to use deadly force to defend himself if the jury concludes that you could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating with complete safety.
5. In stand-your-ground states, you are legally allowed to use deadly force to defend yourself, regardless of whether the jury concludes that you could have safely avoided the risk of death etc. by retreating.

As best I can tell, the current rule is that 12 states fall in the duty to retreat category, with the states being bunched up quite a bit geographically; the other 38 states are stand your ground:

▮ Stand your ground (38 states plus PR, CNMI)
▮ Duty to retreat except in your home (MA, MD, ME, MN, NJ, NY, RI)
▮ Duty to retreat except in your home or workplace (CT, DE, HI, NE)
▮ Duty to retreat except in your home or vehicle or workplace (WI, GU)
▮ Middle-ground approach (DC)
▮ No settled rule (AS, VI)

Pennsylvania imposes a duty to retreat only when faced with an attacker who isn’t displaying or using a weapon “readily or apparently capable of lethal use.” Since it’s rare to have a threat of death or serious bodily injury (remember, you generally can’t use deadly force without such a threat) in the absence of such weapons, or of physical restraint that prevents a safe retreat, I view the Pennsylvania rule as being more on the stand-your-ground side.

The rule in federal cases seems to be ambiguous, and it is in D.C. as well. The D.C. formulation, for instance, is a “middle ground.” The law “imposes no duty to retreat, as it recognizes that, when faced with a real or apparent threat of serious bodily harm or death itself, the average person lacks the ability to reason in a restrained manner how best to save himself and whether it is safe to retreat.” But it “does permit the jury to consider whether a defendant, if he safely could have avoided further encounter by stepping back or walking away, was actually or apparently in imminent danger of bodily harm.” Query what exactly that means.

Still, I think this reflects the general pattern:

1. 3/4 of the states are stand-your-ground, and most of them took this view even before the recent spate of “stand your ground” statutes.
2. There is however a significant minority, basically a quarter of the states, in favor of a duty to retreat.
3. Of course, none of this tells us what the right rule ought to be.

from Latest – Reason.com https://ift.tt/3tBF30N
via IFTTT