Tag: posts

I much like some of the songs by Yuri Shevchuk, of the Russian band DDT; he began writing and performing in the late Soviet era, and has continued since then. My favorites among his songs are the more political ones (such as the one about the wreck of the submarine Kursk); quite a few relate to Russia’s recent wars, such as in Chechnya.

In particular, there’s a 1997 song called Пацаны, transliterated as Patsany, a Russian term that roughly means “guys” or “boys” and refers here to the young Russian men fighting in the First Chechen War; and half a stanza from it keeps bouncing around my head:

Here I saw what might well happen
To Moscow, Ukraine, the Urals

Chechnya, in the north Caucusus right by the Georgian border, is out in the boonies in the eyes of most Russians, I think. It’s mostly populated by an ethnic group (the Chechens) that many Russians don’t really see as Russian. It’s mostly Sunni Muslim, again distinguishing it from “real Russia.” (Conversely, Ukraine, which isn’t part of the Russian Federation, is still part of cultural Russia to many.)

But part of what Shevchuk was saying (just a part) is that this could be the future not just of the periphery but of the heartland. As to Ukraine, of course, his line proved prophetic.

I keep thinking about this, though not with geographical spread but conceptual, when I hear about much that’s been happening here in recent years. I suppose I’ve long been interested in slippery slopes (I wrote a Harvard Law Review article on them in 2003), but Shevchuk’s lines encapsulate it especially well for me. I see the Great USC Chinese Homonym Panic and I see what might well happen to a vast range of other teaching that some ideological groups might label “trauma[tizing]” or dangerous to “mental health” or “harm[ful to] psychological safety.”

Of course I’ve seen it happen to many other professors who have quoted precedents, court filings, historical documents, and other items that actually contain the word “nigger”—it has already happened to me, though with less dire consequences, at least so far—but that might still be conceptual Chechnya to many. But, as Randy Kennedy and I discuss in our draft article, it hasn’t stopped there, and it shows no sign of stopping. I see in the current incidents what is likely to happen to the Moscow, Ukraine, and the Urals of American intellectual life: to any expression of ideas or facts that some people (of all races) view as “harmful” to supposedly vulnerable groups. And of course I have the same worry about the spread of many other attempts at suppression of speech and other liberty, in the universities and outside them.

In any case, I’m sure it doesn’t take a Russian song about the Chechen War to make this point; but for some reason Patsany has taken up residence just a neuron way from where I think of American free speech debates.

from Latest – Reason.com https://ift.tt/32ptz5r
via IFTTT

Last week, the Los Angeles outpost of Eater declared that a new state law implemented in Riverside County “could unleash a completely new kind of marketplace of home-cooked meals” and “revolutionize California’s food scene.”

“The newly implemented regulation allows anyone to run a licensed restaurant out of their home kitchen and dining room,” Eater reported. “No commercial space, no food truck, no ghost kitchen, and no staff is needed—just pull some local permits to get certified by the Riverside County public health office.“

That’s great news.

But two days later, and a few hundred miles up I-5, the San Francisco outpost of Eater reported something quite different: “Bay Area Officials Start Cracking Down on Hustling Chefs’ Pandemic Pop-Ups.”

“One of the Bay Area’s popular new pandemic-born food pop-ups has been shut down by Alameda County’s health department—a possible sign that tolerance is waning for the growing market of unemployed cooks who are selling homemade wares in legal gray areas,” the San Francisco Chronicle reported.

At their heart, the Eater articles focus on the same California law: Assembly Bill (A.B.) 626, the “microenterprise home kitchen operations” law, also known as the Homemade Food Act.

In Riverside, the law is doing exactly what it was intended to do.

“Because the bar for entry to restaurant ownership is high, and the cost of renting a retail kitchen is so great, an informal economy of locally produced and prepared hot foods exists in the form of meal preparation services, food carts, and communally shared meals,” the law declares. “However, due to a lack of appropriate regulations, many experienced cooks in California are unable to legally participate in the locally prepared food economy and to earn an income legally therein.”

But why exactly is a 2-year-old statewide law only helping cooks and consumers in Riverside County (population around 2.5 million), rather than across California (population around 40 million)? That’s because, as I explained in a 2018 column, the “flawed” law requires California municipalities to opt in to the law.

“While the bill would allow sales by home cooks… the law would still place meal and dollar caps on individual sellers, and require home inspections,” I wrote the column, which details some of the shortcomings of A.B. 626. “Each of those requirements raises the specter of government intrusion into the home. It would also allow cities and counties, working together or separately, to continue to ban food sales under the law.”

And continue to ban they have. While a handful of counties and cities have expressed interest in adopting the law in their own jurisdictions, no California city or county save Riverside County—not one—has adopted the law and drafted rules to implement it.

Peter Ruddock of the COOK Alliance, the nonprofit behind the law, told me this week that he expects more cities and counties that have expressed interest in the law to opt in soon after the pandemic eases. But there’s a certain irony to that delay, given the pandemic and its economic wreckage has made it much more important to adopt the law right now. That’s a point Ruddock also makes.

“It’s a shame that they are cracking down at this moment, when home cooks can be part of the solution to a difficult economy and increased hunger caused by the pandemic, fires and more,” he told me this week.

“Overly burdensome state food-safety regulations have forced [many home] cooks to the brink,” I wrote in a Sacramento Bee op-ed in 2017. “If these regulations remain in place, fledgling food entrepreneurs and consumers across California will suffer.“

Remember that righteous language in A.B. 626 itself—about how the bar for entry to restaurant ownership is too high? Well, two years after A.B. 626 became law, the bar for entry to restaurant ownership is still high. The cost of renting a retail kitchen is still great. Chefs in San Francisco and elsewhere are still forced to turn to the informal economy to get by. The lack of appropriate regulations still leaves many experienced cooks in California unable to make and sell food legally.

A.B. 626 became law more than two years ago. The law’s real promise is now on display in Riverside County. But for the 94 percent of Californians who don’t live there, A.B. 626’s unrealized promise is nothing more than a cruel illusion.

from Latest – Reason.com https://ift.tt/3isy0lQ
via IFTTT

9/12/1958: Cooper v. Aaron is decided.

from Latest – Reason.com https://ift.tt/35tIFJh
via IFTTT

In this month’s issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer’s tumultuous protests productively. Check out Damon Root on abolishing qualified immunity, Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

“Through a combination of specific legislative acts, departmental procedures, monopolistic default, and the general effect and aura of the laws they enforce, police have come to a point where, to one degree or another, they are above the law. Not only may (and do) and must police squash rights within the law, but, the degree depending on circumstances and motive, they may also do so outside the law.”
Lanny Friedlander
“The Cops: Heroes or Villains?”
November 1969

As tens of thousands of Americans marched through the streets following the police killing of George Floyd in Minneapolis, city councils, state legislatures, and Congress all wrestled with how to address protesters’ demands for an end to police brutality. One problem is that the standards for how and when police can use force on someone are complicated, and strong-sounding reforms have a funny way of getting neutered at the street level where day-to-day police interactions occur.

New York City banned police from using chokeholds, for instance, but that didn’t stop New York Police Department (NYPD) officer Daniel Pantaleo from killing Eric Garner in 2014. Cities spent money on implicit bias and de-escalation training in the years following the rise of the Black Lives Matter movement, but Floyd still died with a knee on his neck. The number of fatal police shootings has hovered around 1,000 per year since 2015, according to a database created by The Washington Post.

Yet there are concrete policy changes that, taken together, could improve policing and reduce excessive force incidents.

Defining the Continuum of Force

One of the most pressing demands from activists is to change departments’ use-of-force policies, which govern how and when police can initiate force against a person. Every department has its own procedures manual, and traditionally lawmakers and courts have been loath to second-guess how police do their job.

“Currently, what is generally the requirement in most police departments in most states is kind of a sliding scale [of force] that leaves a great deal of discretion to officers,” says Suzanne Luban, a clinical supervising attorney and lecturer at Stanford Law School. “So officers are told to use the degree of force they deem reasonably necessary under the circumstances, and usually the part that’s not said, but it is included in that, is to attain compliance.”

But as Luban notes, “compliance” isn’t always worth potentially maiming or killing someone, especially when the underlying crime is a petty misdemeanor. She cites cases like Israel Hernandez-Llach, an 18-year-old graffiti artist who died after being tased by Miami Beach police in 2013. The Miami state attorney found the use of force was legally justified, although the Miami Beach Police Department later settled a civil lawsuit filed by Hernandez-Llach’s family.

Campaign Zero, a nonprofit group that advocates policing reforms, has called for numerous changes to use-of-force policies beyond banning chokeholds. These include requiring officers to use de-escalation tactics and verbal warnings, defining what kind of force is appropriate for a given level of resistance, and increasing scrutiny of an officer’s tactics leading up to his or her use of deadly force.

Several states have already taken steps along those lines. In 2019, California enacted a law that raised the standard for when police officers can use deadly force. The new law allows such force only when the officer “reasonably believes” it is necessary to prevent death or serious injury, while the old standard allowed “reasonable force” during an arrest. (Notably, the legislation was watered down under pressure from police unions, leading Black Lives Matter groups to pull their support for it.)

Efforts to reform the use of force have exploded in the months following Floyd’s death in late May. The Washington Post reported that by July, 26 of the 65 largest U.S. cities had enacted bans on police chokeholds. Utah passed a bill that makes it a third-degree felony for a police officer to kneel on a suspect’s neck as a method of restraint and a first-degree felony if that action results in a person’s death. And an NYPD officer was recently charged for using a prohibited chokehold on a suspect.

Other cities and states are hoping to break down the infamous “blue wall of silence” that encourages officers to ignore misconduct. The Atlanta City Council passed a package of reforms that, among other things, created a statutory duty for officers to intervene when they witness excessive force by one of their colleagues. The Massachusetts Senate passed a similar requirement as part of a reform package.

Several municipalities and states have also considered or passed legislation banning police from shooting at moving cars or firing “non-lethal” projectiles at protesters’ heads.

Yet the targeting of specific police tactics can only do so much, according to Luban. “Those are all important reforms,” she says, “but that’s not going to produce the holistic change that we need. It’s just reactive. What we need to do is address on multiple levels the lack of trust and accountability with police officers, and try to change the warrior culture that is in police departments.”

Addressing the Warrior Mentality

In 2016, Jeronimo Yanez, a 28-year-old suburban Minneapolis police officer, fatally shot Philando Castile during a routine traffic stop. Two years before, Yanez had attended a class called “The Bulletproof Warrior” developed by military veteran David Grossman.

Grossman’s course is one of many offered to police officers around the country that promise to help cops make it home safe every night by instilling in them a warrior mentality. The New York Times, describing one of the booklets from Grossman’s class, reported that it “portrays a world of constant and increased threat to officers, despite more than two decades of declining violent crime in the United States.”

To prevent unnecessary loss of life, departments should emphasize de-escalation training and discourage or prevent officers from taking classes that cultivate itchy trigger fingers. The us vs. them mentality, fueled by overheated narratives about a “war on cops,” will be hard to shake, however.

In Minneapolis, about a year before Floyd’s death, Mayor Jacob Frey tried to ban the city police department from sending officers to warrior-mentality training courses. “When you’re conditioned to believe that every person encountered poses a threat to your existence, you simply cannot be expected to build out meaningful relationships with those same people,” Frey said.

In response, the local police union set up a fund to privately pay for officers to attend the courses.

Because use-of-force incidents often turn on the judgment and character of one officer in one of America’s roughly 18,000 law enforcement agencies, there is no cure-all law that will immediately stop brutality. But steps like strictly defining what levels of force are appropriate, raising the standards for the use of potentially deadly force, and keeping cops out of training that warps the way they look at everyone else could at least help create a framework for changing an internal culture that has for too long been left to police itself.

from Latest – Reason.com https://ift.tt/35vDYOY
via IFTTT

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficiking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress’s powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called “substantial effects” test. (In fact, the “substantial effects” test is an application of Congress’s Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch show a careful grasp of Raich:

Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA’s application to the defendants’ extraterritorial conduct is a permissible exercise of Congress’s authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress’s power to regulate commerce “among the states,” which undoubtedly presents a different question than Congress’s power to regulate commerce “with foreign nations,” and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the “commerce with foreign nations” context.

She nailed it. Lopez identified three specific requirements to trigger the substantial effects test: (1) activity, that is (2) intrastate and (3) economic in nature. Leading up to NFIB, most critics only focused on factors 2 and 3; they disregarded the first factor. But we cannot forget the second factor.

The MDLEA has more problems. The statute lacked any congressional findings about how the regulated activity would affect foreign commerce. The statute also lacked a “jurisdictional hook.” Finally, the Court found that the government’s capacious reading of federal power lacks any limiting principle (sound familiar?):

Indeed, under the government’s reasoning, nothing would prevent Congress from globally policing wholly foreign drug trafficking commerce, potentially intruding on the sovereignty of other Nations, and bringing foreign nationals into the United States for prosecution based solely on extra-territorial conduct when the United States was neither a party to, nor a target of, the commerce.

Give that this panel was unanimous, en banc review is unlikely. This case may be headed to the Supreme Court.

from Latest – Reason.com https://ift.tt/35uvmID
via IFTTT