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When 46-year-old Holly Barlow-Austin was detained in the Bi-State Justice Center jail on a probation violation on April 5, 2019, her vital signs were normal. Barlow-Austin was HIV-positive and suffered from bipolar disorder. Nevertheless, her white blood cell count and blood pressure were in healthy ranges when she was admitted to the jail, which sits on the border of Texas and Arkansas, a region known as Texarkana. The morning after she was incarcerated, her blood pressure was 118/73. She had no problematic vital signs.

Three days later, her husband went to the jail personally to hand over her medications, which were correctly labeled and showed up-to-date prescriptions. They included pills to manage HIV, depression, and bipolar disorder, as well as an antifungal. But jail staff initially withheld some medications and only gave her others sporadically, in a way that undermined their efficacy, according to a lawsuit filed Wednesday. 

Soon after, she became seriously ill, complaining of a headache and a lump on her neck. Her blood pressure clocked in at higher than usual and she was placed in a medical observation cell in the jail. 

Blood work performed by the medical staff at the jail on April 14 showed her white cell blood count at 87. The normal range in healthy adults is 500 to 1,500. Disturbing video footage shared with Reason by her family’s lawyer shows Barlow-Austin splayed on the ground of her cell, clutching her head. On April 30, she told jail staff her legs were numb. She was taken to the jail medical office, where they gave her Tylenol before returning her to her cell. Jail staff brought her to an outside mental health provider, who relayed the information to jail staff that Barlow-Austin had been fainting. In response, according to the lawsuit, a nurse on staff said that Barlow-Austin “pretends to be weak” and “knows how to play the sickly role.” 

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The Texarkana jail is operated by LaSalle Corrections, a private company that administers jails and immigration detention centers throughout the country. This week, the firm was in the news after a whistleblower claimed that another facility run by the company has failed to follow standard protocol to guard detainees and employees from the spread of COVID-19. “They’re still not taking this seriously,” nurse Dawn Wooten told The Intercept about the immigration detention facility in Georgia. “Enough was enough.”

Wooten also claimed that the detention center performed a staggering number of hysterectomies on immigrant women, Vice reported. “When I met all these women who had had surgeries, I thought this was like an experimental concentration camp,” a source told Vice. She said she’d met five women who’d received hysterectomies after being detained between October and December 2019. “It was like they’re experimenting with their bodies,” she said.

Previously LaSalle Corrections had been in the news after 20-year-old Morgan Angerbauer died of ketoacidosis, a condition which results from high blood sugar, while in custody at the Bi-State jail in 2016. She was denied medication to adequately manage her diabetes. Her pleas for help were ignored by staff despite the fact that she was unable to stand and was vomiting for hours, according to a lawsuit reported by the Texarkana Gazette. Lawyers for Angerbauer’s family eventually reached a settlement in a wrongful death suit with LaSalle.

In 2015, 35-year-old Michael Sabbie, who suffered from diabetes, asthma, and hypertension, told guards at the Bi-State jail that he couldn’t breathe. Guards reported him for “creating a disturbance” by “feining [sic] illness and difficulty breathing,” HuffPost reported. Guards threw him on the ground and pepper-sprayed him. He was found dead the next morning. A federal magistrate judge found the facility guilty of extreme medical neglect. “Here, the evidence shows that at various times during his confinement, the security officers knew Mr. Sabbie faced obvious health risks,” Judge Caroline Craven wrote. “She said there is sufficient evidence that several staffers ‘knowingly disregarded Mr. Sabbie’s complaints, thus acting with deliberate indifference to his serious medical needs.'” 

LaSalle did not immediately respond to requests for comment for this story.

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By May 2, 2019, Barlow-Austin’s blood pressure had climbed to 160/90. Staff found that she had a urinary tract infection. She complained to jail staff about headaches, vomiting, and blurred vision. She reported fainting frequently. She was not taken to a hospital. 

By June, the lawsuit alleges, Barlow-Austin was blind as a result of her various undertreated conditions. Video shows her in distress, emaciated, flailing around on the floor of her jail cell, repeatedly soiling herself. Video shows a staff member setting a styrofoam cup of water in her cell on June 10, then falling back and holding their nose at the smell emanating from the cell. It was only the second cup of water she’d consumed in 16 hours, according to the complaint. In the video captured the same day, she appears to mouth “Help me” to two female inmates who’d been sent to her cell to clean it up. 

During this period, her husband and family were repeatedly told she didn’t want to see them, when in fact she appeared to be unaware she had visitors and unable to communicate her desires.

On June 11, Barlow-Austin stopped moving. Two hours later, jail staff called 911. Her husband once again tried to visit her at the jail, on June 15, only to be told she was no longer there. It took days for him to figure out that she had finally been transferred to the hospital. 

On June 17, she was dead. Cause of death was listed as fungemia/sepsis due to fungus, cryptococcal meningitis, HIV/AIDS, and accelerated hypertension.

Barlow-Austin was in the Bi-State Justice Center jail in part because, according to her family, she had decided to get help after years of struggling with drug addiction. They say she had violated the terms of her probation for a misdemeanor by deactivating her ankle bracelet and traveling to a rehab facility in nearby Dallas, and that she was jailed upon her return home—hardly an offense that should be punishable by death. Since the jail had technically released her to a hospital prior to her death, there was no formal criminal investigation into the case.

Erik Heipt, a civil rights attorney who handles police and jail brutality cases, is litigating the case. He tells Reason that he’s not easily disturbed. “I’ve handled many grotesque cases. I am not easily rattled,” he says. But the negligence in this case got to him. “What happened to Holly Barlow-Austin was cruel and inhumane. It was beyond all bounds of human decency,” Heipt says. “It was tantamount to torture. If a prisoner of war were treated this way, it would be a war crime.”

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The Virginia Senate last week passed a comprehensive police reform package that would prohibit the use of no-knock warrants and chokeholds in the majority of cases and make it easier for departments to decertify rogue cops. One thing was noticeably absent, though: a ban on qualified immunity.

Qualified immunity makes it exceedingly difficult to sue public officials when they violate your rights, as it requires that any alleged misconduct be outlined almost identically in a previous court precedent. The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress, introduced a bill in the U.S. House that would have abolished qualified immunity (though it has not received a vote and will likely die without one).

Virginia’s House passed a separate bill to end qualified immunity earlier this month, but the legislation met its demise in the state Senate last Thursday. Interestingly, Virginia’s governing bodies are both controlled by Democrats, which should in theory make it easy to abolish qualified immunity when considering that many high-profile Democrats and a hefty majority of the American public support ending the doctrine.

But Virginia Democrats’ decision to punt on the issue puts them more in line with moderates in the Republican Party—a testament to the power of the law enforcement lobby.

“It’s a big problem,” said Sen. Scott Surovell (D–Fairfax). “I want to do something about it.” But Surovell opposed the recent measure to end qualified immunity, and one need not look far to figure out why. Virginia lawmakers crafting the police reform legislation met with police unions “probably six or eight times” and implemented amendments accordingly, said Wayne Huggins, executive director of the Virginia State Police Association, a union representing people in law enforcement, at a press conference last Thursday. “The greatest threat to our profession is the proposed elimination of qualified immunity,” added Maggie DeBoard, the first vice president chief of the Virginia Association of Chiefs of Police, another police union. “There is a myth being perpetuated that qualified immunity protects bad cops. It does not, and it has not protected any of the bad cops that I have been a part of firing or separating in my 34 years in the job.”

DeBoard might gain new perspective on that if she were to talk to the mother of the 10-year-old boy who was shot in Georgia by sheriff’s deputy Matthew Vickers, who received qualified immunity. Or the parents of the 15-year-old boy on his way to school who was shot in Los Angeles by Officer Michael Gutierrez, who received qualified immunity. Or the man who had a police canine sicced on him—after he had surrendered—by two cops who both received qualified immunity. Or the men who allegedly had $225,000 stolen from them by two officers, executing a search warrant, who both received qualified immunity.

The latter case epitomizes the mental contortions required by the legal doctrine. A unanimous panel for the U.S. Court of Appeals for the Ninth Circuit wrote that “although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment.” In other words, officers need case law text to tell them stealing is bad.

Advocates like DeBoard present an apocalyptic vision of a world without qualified immunity, one in which officers go bankrupt from frivolous civil suits and leave the force in droves. That’s not a vision based in reality. For one, losing qualified immunity is not equivalent to losing a lawsuit. It simply provides someone with the right to bring such a suit in front of a jury—a right the American public is technically still guaranteed under federal law. And in the case that a public servant does lose a suit, the municipality nearly always foots the bill. 

Police unions are obligated to repeat talking points about the dangers of scrapping qualified immunity since their job is to stick up for all cops, even when it comes at the expense of the citizens they’re supposed to serve. Such was the case with Sgt. Brian Miller, the sheriff’s deputy in Broward County, Florida, who hid behind his vehicle for 10 minutes while a gunman ravaged Marjory Stoneman Douglas High School. He was fired in 2017 but by 2020 had regained that position thanks, in part, to his union.

Surovell, who did not respond to Reason‘s request for comment, tells The Washington Post that although the Senate rejected the qualified immunity bill, the new bill’s clarification will make it clear that officers cannot violate certain standards and expect to be protected by qualified immunity. “By making these changes to the Code of Virginia, by clarifying what is legal and what is not legal, we are taking qualified immunity out of the mix,” he said. The new legislation does codify limits on force, including prohibiting chokeholds and banning shooting at moving vehicles unless officers believe their lives are at risk.

Still, Surovell will likely be disappointed. The doctrine requires that a constitutional right be “clearly established” in order to hold a public official accountable for violating it, which by today’s standard means a near-identical scenario needs to have been previously litigated and condemned by the courts.

Judges have applied that standard to the letter of the law, awarding the legal protection even in cases where they admit that a right was indeed violated. A panel for the U.S. Court of Appeals for the Fifth Circuit, for instance, acknowledged last year that prison guards in Lubbock, Texas, violated Trent Taylor’s Eighth Amendment rights when they placed him in two squalid cells. But not all of the smaller details lined up adequately. “Taylor stayed in his extremely dirty cells for only six days,” Circuit Judge Jerry E. Smith wrote. “Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, we hadn’t previously held that a time period so short violated the Constitution. That dooms Taylor’s claim.”

Apply that to the Virginia Democrats’ new rules: Chokehold bans are notoriously ineffective and difficult to enforce. Who’s to say that any officer couldn’t claim he was afraid for his life based on the unique circumstances of the confrontation?

Surovell and his fellow Democrats have a chance to revisit qualified immunity in early 2021. The legislature’s solution should center around protecting Virginia’s public, not its police unions.

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On July 9, 1970, President Richard Nixon informed Congress of his plan to create a new federal agency tasked with protecting the nation’s people and resources from pollution and environmental harm. Although there were a range of environmental programs and offices throughout the federal government, Nixon argued that a reorganization of federal efforts, concentrating them in a single agency, was necessary to “effectively ensure the protection, development and enhancement of the total environment itself.”

The new Environmental Protection Agency (EPA) opened its doors on December 2. The first EPA Administrator, William Ruckelshaus, immediately adopted an aggressive enforcement agenda, and the new agency quickly made its presence felt. For the next fifty years, the EPA would be one of the most powerful and controversial federal regulatory agencies.

Last fall, the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law hosted a day-long conference on the EPA’s first 50 years. The papers from the conference have now been published in the Case Western Reserve Law Review, and are available online. The collected presenters and authors included the current EPA Administrator, Andrew Wheeler, and EPA veterans from each of the last four administrations.

Here is a listing of the papers:

• Jonathan H. Adler, The Environmental Protection Agency Turns Fifty
• Andrew Wheeler, The EPA at Fifty Symposium: Keynote Address
• E. Donald Elliott, A Critical Assessment of the EPA’s Air Program at Fifty and a Suggestion for How It Might Do Even Better
• Joseph Goffman and Laura Bloomer, Disempowering the EPA: How Statutory Interpretation of the Clean Air Act Serves the Trump Administration’s Deregulatory Agenda
• Joseph E. Aldy, Evaluating Regulatory Performance: Learning from and Institutionalizing Retrospective Analysis of EPA Regulations
• Cary Coglianese and Daniel E. Walters, Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts
• Emily Hammond, Toward a Role for Protest in Environmental Law
• Michael A. Livermore, Polluting the EPA’s Long Tradition of Economic Analysis
• Brian F. Mannix, The EPA at Fifty: Time to Give Bootleggers the Boot!
• Wendy Wagner, It isn’t Easy Being a Bureaucratic Expert: Celebrating the EPA’s Innovations
• Michael P. Vandenbergh, Jonathan M. Gilligan, and Haley Feuerman, The New Revolving Door
• Robert V. Percival, The EPA as a Catalyst for the Development of Global Environmental Law

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A rule recently proposed by the Substance Abuse and Mental Health Services Administration (SAMHSA) revives the previously rejected idea of using hair tests in drug screening of federal employees and workers in federally regulated industries. The proposed rule, which was published last week, says “hair testing potentially offers several benefits when compared to urine,” including “a longer window of drug detection.”

If the aim of these tests is to identify workers whose job performance is affected by psychoactive substances, that “benefit” is actually a disadvantage. Metabolites do not show up in hair until after a drug’s effects have worn off and typically can be detected for up to three months. Depending on hair length and growth rate, the detection window can be as long as a year. In other words, hair testing does not detect impairment or even recent use. There is a similar problem with urine testing, but the detection period for urinalysis is much shorter—a few days after a single dose of marijuana, for example, or as long as a month for regular cannabis consumers.

Another widely recognized problem with hair tests is that their results are affected by hair color. SAMSHA acknowledges “scientific evidence that melanin pigments may influence the amount of drug incorporated into hair.” In one study cited by SAMSHA, for example, “codeine concentrations in black hair were seven-fold higher than those in brown hair and 14-15-fold higher than those in blond hair.” As the agency notes, such findings “have raised concerns that selective drug binding with the wide variation of color pigments distributed amongst the population may introduce bias in drug test results.”

The implication is that people with darker hair—blacks and Hispanics, for example—are more likely to lose their jobs or have their applications rejected as a result of a positive hair test. “It is mind-boggling that the federal government is revisiting this half-baked proposal now,” says Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML). “Given the heightened awareness surrounding the need for social and racial equity, the idea of proposing a testing procedure that will inherently deny more people of color opportunities than it would others who have engaged in exactly the same activities is beyond tone deaf and counterproductive.”

SAMSHA’s proposal, which would allow the use of hair samples in pre-employment screening and random testing by federal agencies, is also likely to be adopted by the Nuclear Regulatory Commission and the Department of Transportation, which regulates industries such as trucking and railroads. SAMSHA projects that the rule would lead to 275,000 hair tests by federal agencies each year, plus 15,000 tests in the nuclear industry and 1.5 million in the transportation sector.

Based on the relevant case law, SAMHSA notes, “an employment action taken on the basis of a positive hair test alone, without other corroborating evidence, may be vulnerable to legal challenge.” The rule therefore would require a confirmatory urine or saliva test.

SAMSHA says “this two-test approach is intended to protect federal workers from issues that have been identified as limitations of hair testing, and related legal deficiencies.” But it suggests that a second test might not be required for marijuana metabolites: “The Department is specifically requesting comments, including support from the recent scientific literature, on whether hair tests that are positive for the marijuana analyte, delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA), should be excluded from the requirement to test an alternate authorized specimen.”

Pre-employment and random hair analysis is likely to identify many cannabis consumers and other drug users whose choice of recreational intoxicants when they are not at work is irrelevant to their job performance. On the face of it, firing or refusing to hire those people makes as much sense as rejecting or dismissing people based on a positive hair test for alcohol.

Despite the weak empirical basis for workplace drug testing, employers who demand urine from job applicants traditionally have argued that they are trying to filter out the sort of people who disobey the drug laws, which they view as a marker of antisocial and irresponsible tendencies. Given the ongoing collapse of marijuana prohibition, that argument is becoming increasingly tenuous as applied to cannabis consumers, the group most commonly identified by drug testing.

Employers who use pre-employment urinalysis also maintain that it identifies applicants who are either too dependent or too stupid and reckless to stop smoking pot in time to pass a test they know they will have to take. But that argument is hard to take seriously if employers use a test that can detect drug metabolites for up to a year.

Marijuana Moment notes that SAMSHA wrote its proposal without consulting the federal Drug Testing Advisory Board. “These proposed guidelines were developed without the expertise needed to ensure that they are scientifically accurate and defensible,” board member Michael Schaffer, a toxicologist who works for the hair testing company Psychemedics, told Freight News. But Schaffer’s main objection is that SAMSHA’s guidelines are too restrictive. “I fear that these proposed guidelines are going to unnecessarily restrict the use of hair drug testing, an incredibly effective tool at detecting drug use, for reasons which have no scientific basis,” he said.

NORML’s perspective, as you might expect, is rather different. “Hair follicle testing is well established to possesses limited probative value, which is why it has never gained a particularly strong foothold in the general workplace,” it says. “Federal authorities have also rejected the inclusion of hair follicle testing in the federal workplace drug testing guidelines on multiple occasions dating back decades.” Given the manifest weaknesses in the case for hair testing, it is best viewed as yet another way of enforcing drug prohibition and punishing people who defy it.

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One of the more bizarre episodes of President Donald Trump’s trade war—and there are plenty of contenders—came to an abrupt end on Tuesday afternoon when the United States backed down from a threat to impose new tariffs on aluminum imports from Canada.

“This was a day where common sense prevailed,” Chrystia Freeland, Canada’s deputy prime minister, said at a press conference on Tuesday where she announced that Canada would also drop its plans to retaliate against the threatened tariffs.

Indeed, much of American trade policy over the past few years has been marked by a shortage of common sense. But slapping new tariffs on aluminum imported from Canada—and doing so just weeks after the United States and Canada (and Mexico) signed a new trade agreement—was always completely indefensible.

Officially, the new tariffs were a response to what the White House called, at the urging of lobbyists for two domestic aluminum manufacturers, a surge in aluminum imports from Canada. That claim was a bunch of nonsense, but even if it were true, it wouldn’t be something to be upset about. The United States does not produce enough aluminum to meet domestic needs, so imports are essential for supporting the 97 percent of American aluminum industry jobs that are in downstream production. No wonder there was widespread opposition to the tariffs from the American aluminum industry—you know, the very industry that these tariffs were supposed to be protecting.

Unofficially, the entire episode is a good demonstration of how unmoored from reality the Trump administration’s views on trade have become. Like it did in 2018, the White House was planning to use Section 232 of the Trade Expansion Act of 1962 to impose tariffs on Canadian aluminum in the name of national security.

In fact, Trump’s August 6 proclamation announcing the renewed (and now canceled) tariffs is a good illustration of the absurdity of that whole line of argument. The document goes through the administration’s two years of waffling between declaring “that aluminum articles were being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security of the United States,” and subsequently deciding that “imports of aluminum from Canada would no longer threaten to impair the national security,” before reversing course again just months later and then once more on Tuesday.

Strip away the fancy letterhead and self-serious rhetoric, and you’re left with a rather silly proposition. As Sen. Chuck Grassley (R–Iowa) wrote on Twitter shortly after the administration announced the new tariff plans: “Use of national defense tariffs is ridiculous, beer cans are not defense weapons.”

But perhaps nothing reveals the ridiculousness of the Trump administration’s claim that aluminum imports are a national security issue like what the Trump administration did on Tuesday. If this were a matter of national security, suddenly changing the decision to levy tariffs would be imprudent.

The entire charade of treating routine, peaceful transactions between people on different sides of a border as somehow undermining national security has always been farcical—at least if you live in a world where the words “national security” have meaning. It would be funnier, of course, if there weren’t thousands of jobs hanging in the balance, subject to the whims of a president and his trade advisers who seem to have learned little from two-plus years of trade wars that stubbornly refuse to be either good or easy to win.

Still, give the White House some credit for recognizing this folly before it went any further.

“Removing these disruptive and unnecessary tariffs on Canadian aluminum was the right decision for the U.S. aluminum industry and its 162,000 workers,” Tom Dobbins, president and CEO of the Aluminum Association, an industry group, said in a statement. “Especially as the industry continues to recover from the worst of the COVID-driven demand disruptions, it is vital that we keep North American aluminum supply chains open and unencumbered.”

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This morning, the Supreme Court issued the following announcement about oral arguments for the October sitting:

The Court will hear all oral arguments scheduled for the October session by telephone conference, following the same format used for the May teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the November and December argument sessions.

The Court will provide a live audio feed of the October oral arguments to a media pool as it did for the May arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.

Additional details regarding media pool distribution will be provided in the coming weeks.

The schedule of arguments for the October term can be seen here.

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