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Two months before the death of George Floyd launched a summer of protests, riots, and demands for police reform, officers in Rochester, New York, handcuffed Daniel T. Prude in the middle of the street, put a bag over his head, and pinned the naked man onto the street while he panicked. This continued until Prude stopped breathing. He ultimately died.

The general public is finding out about the incident this week because Prude’s family and local activists released police body-camera video of the incident on Wednesday.

According to reporting from the Rochester Democrat and Chronicle and The New York Times, police responded to a 911 call on March 23 from Prude’s brother. Prude, who had recently been taken to the hospital for mental health issues, had run out of his home and was behaving erratically.

When Rochester police responded to the call, they found him running in the street. Somebody else had in the meantime called 911 to say that a naked man had tried to break into a car. Police believe he also broke windows at a nearby business. According to the Democrat and Chronicle, Prude encountered several other people during his journey and even begged one to call 911 for him.

The body camera footage shows Prude clearly in a state of distress when the officers confront him. They order Prude to the ground with his hands behind his back, and he complies immediately. He never tries to get physical with them, but his behavior remains erratic: He yells at the officers, he starts spitting, and he claims to have the coronavirus. The officers then put him in what they call a “spit hood.” (The Times notes that these hoods have been involved in 70 deaths in the past decade and have been cited in police lawsuits.)

Prude yells “Gimme that gun!” at the officers and demands one officer’s Taser. Eventually they press Prude to the ground, pushing his head into the pavement. The time stamps on the video show he was held down for about 3 minutes. An emergency medical technician arrives, but the officers don’t mention that Prude isn’t moving. Three minutes later, the EMT asks the officers to roll Prude over, and that’s when they realize that he’s no longer breathing.

After that, Prude was given CPR and loaded into an ambulance. He was actually revived for a time, but he was declared brain dead due to the lack of oxygen. On March 30, he was removed from life support and died.

Here’s an edited version of the video from the Democrat and Chronicle:

A subsequent toxicology report showed low levels of PCP in Prude’s bloodstream, which could have explained some of his behavior. The autopsy report attributed Prude’s death to “complications of asphyxia in the setting of physical restraint due to excited delirium due to acute [PCP] intoxication.”

“Excited delirium” is a controversial diagnosis that is not actually recognized by the American Medical Association or the American Psychiatric Association; it seems to occur primarily—perhaps even exclusively—during encounters with law enforcement. (Read more here on the sordid history of the term and its use to justify violent interactions with people in a drug-induced or mental health crisis.)

In the video, one EMT and an officer on the scene affirm to each other that Prude was under the influence of “excited delirium.” The EMT assures the officer, “It’s not you guys’s fault.”

None of the officers involved have been disciplined, but the New York attorney general’s office is investigating the death. More than 100 protesters gathered Wednesday afternoon in Rochester, and nine were arrested and cited with misdemeanor charges in clashes with police.

Prude’s case is a prime example of what policing reform activists mean when they call for hanging the role of policing so that people with guns and Tasers are not the first responders to somebody having a mental health or drug crisis.

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The Trump administration’s new nationwide moratorium on evictions is attracting heated opposition from some Republicans in Congress, who say it is legally shaky and sets a dangerous precedent for future administrations.

“I think the legal authority is a real stretch,” says Sen. Pat Toomey (R–Penn.). “I don’t know what the limiting principle is.”

The Centers for Disease Control and Prevention (CDC), which issued the moratorium on Tuesday, cites its authority under the Public Health Services Act to issue regulations to stop the interstate spread of disease. That argument doesn’t impress Toomey.

“If the CDC has the authority to force landlords to effectively give away their product for free, I don’t know where that ends,” Toomey tells Reason. “Can General Motors be forced to give people cars unless they otherwise crowd into subways?”

Other congressional Republicans have raised similar concerns. Sen. Rand Paul (R–Ky.) said on Twitter that the “CDC does not have the authority to do this. It’s dangerous precedent and bad policy.”

“Rental contracts are governed by state law. There is no federal authority to overturn them,” tweeted Rep. Thomas Massie (R–Ky.). “The CDC order is an affront to the rule of law, and an emasculation of every legislator in this country—state and federal.”

In addition to the legal issues it raises, Toomey argues that the CDC’s eviction moratorium is bad policy.

“There’s not some mass wave of evictions going on,” he argues. “It is in the interest of landlords to work out agreements with tenants going through difficult circumstances.” A moratorium on evictions, he suggests, would encourage non-payment of rent and disincentivize deals between tenants and landlords.

According to data from Princeton University’s Eviction Lab—which tracks eviction filings in select cities—evictions are currently below historic averages in almost every city, including in places where local and state eviction moratoriums have expired. Thus far, rent payment rates have remained pretty steady during the coronavirus pandemic and are only slightly below where they were last year.

The federal eviction moratorium does nothing to relieve tenants of the responsibility to pay rent, instead only limiting landlords’ ability to evict tenants for non-payment. Housing advocates have argued that the moratorium is a half-measure that needs to be coupled with rental assistance to tenants. Not doing so, they argue, will leave renters vulnerable to eviction once months of back rent come do.

A $3.5 trillion relief package passed by the Democrat-controlled House in May included $100 billion in emergency rent relief.

Toomey thinks that assistance to renters isn’t warranted given the relief measures that Congress has already enacted, including the $1,200 stimulus checks and the federal $600 unemployment bonus.

“I think we have to ask ourselves how much expansion of the welfare state, how many different layers, how many different programs are we going to do. When is it enough?” the senator says.

Toomey says that he has expressed his concerns about the federal government’s eviction moratorium to senior administration officials. A legislative remedy isn’t practical, Toomey argues, given that House would never sign off on a bill repealing an eviction moratorium.

Meanwhile, he worries that the effort sets a dangerous precedent.

“What future administration, what future president, certainly what future Democratic president is going to want to be accused of being less generous than Donald Trump?” asks Toomey. “Are we to expect that the standard response of the government to an economic downturn is an eviction moratorium? We’ve never done that before.”

The CDC’s eviction moratorium goes into effect Friday.

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Yesterday, I flagged an email from Gregory Washington, the President of George Mason University. He announced some a high-level program for accreditation titled “Transformative Education through Equity and Justice: Anti- Racist Community Engagement.” The email was vague on specifics. In July, Washington sent a follow-up email to the George Mason community with very specific initiatives. (Update: I was forwarded this email today, but it was dated July 23). He explains, “My vision is nothing short of establishing George Mason University as a national exemplar of anti-racism and inclusive excellence in action.” Washington explains that anti-racism will be incorporated into Curriculum and Pedagogy, Campus and Community Engagement, University Policies and Practices, and Research Training and Development. I have pasted the entire email below the fold. Here are four high points.

First, the most significant change concerns hiring. The email explains:

Equity Advisors are senior faculty members, appointed as Faculty Assistant to the Dean in their respective schools. Equity Advisors participate in faculty recruiting by approving search committee short lists and strategies and raising awareness of best practices. Additionally, they organize faculty development programs, with both formal and informal mentoring, and address individual issues raised by women and faculty from underrepresented groups.

If I am reading this policy correctly, these equity advisors could have a veto at every stage of the hiring process.

Second, the University will now consider “implicit bias” for tenure decisions.

We will develop specific recommendations for the renewal, promotion, and tenure processes that address implicit bias, discrimination, and other equity issues (e.g., invisible and uncredited labor) to support faculty of color and women in their professional work.

This policy is framed as a way to “support faculty of color and women.” But could an applicant’s failure to abide by implicit bias justify a denial of tenure? That is, a junior faculty members refused to comply with the implict bias re-education program. Would he be penalized by the University?

Third, the University will “require an anti-racism statement on all syllabi.” We should be clear. Anti-racism is not some sort of mundane statement favoring diversity. Nor is it a legal disclosure required by federal law (Title IX or ADA). Anti-racism is a political viewpoint. George Mason is a public institution. This requirement is likely a violation of the First Amendment. Consider an analogy that my colleague Jon Adler has raised elsewhere. In the 1950s, a public institution required faculty members to include anti-communism statements on their syllabi. That would be a 9-0 case at the Supreme Court.

Fourth, the University will consider names of buildings:

We will convene the University Naming Committee to evaluate names of university buildings and memorials to ensure they align with the university’s stated mission to serve as an “academic community committed to creating a more just, free, and prosperous world.”

Umm, the University is named after a slaveholder. Yesterday, I predicted that George Mason University would simply rebrand itself as GMU University–where the initials do not stand for anything. George Washington University will also rebrand at GW–where the initials do not stand for anything.

Throughout this entire email, Washington does not define “antiracism.” Antiracism is not the opposite of racism. I worry about my my alma matter, Scalia Law School. Declaring independence is looking better by the day.

Sent: Thursday, July 23, 2020 8:37 AM
Subject: President Washington Announces Task Force on Anti-Racism and Inclusive Excellence

Hello Fellow Patriots,

In the days that followed the murder of George Floyd, I sent you a message that promised action to address racial inequities that persist here at George Mason University.

As I enter my fourth week as president, I want to share with you the actions we will begin to take, as a community of Patriots.

George Mason University enters this national conversation with an admirable track record as a pace-setter of action for racial justice, and for truth-telling about our own past.

We are proud to draw upon the expertise of

• The Truth, Racial Healing, and Transformation Campus Center, one of the first of its kind in the nation.
• The Jimmy and Rosalynn Carter School for Peace and Conflict Resolution, one of the nation’s few schools dedicated to social justice and peace, and one of the very best.
• The Enslaved People of George Mason research and memorial project, the ground-breaking undertaking by our own faculty and students to tell the full truth of our university’s namesake so that we may learn and grow from it.
• And of course, we take pride in hosting Virginia’s largest and most diverse university student body, with a majority of our students representing communities of color, and our Black student population in particular recognized as among the nation’s top academic performers.

These are just some of the many examples of excellence and inclusion around racial justice that the Mason community has undertaken. They make us proud.

But we have work to do if we are to ensure that every student, faculty, and staff member is welcomed and respected as a full equal in this community of learning.

And the uncomfortable truth is not everyone at Mason feels equal, or is treated equally.

So, today I am creating the President’s Task Force on Anti-Racism and Inclusive Excellence, and giving its members some big assignments.

• We need to know where systems, practices, and traditions of racial bias exist at George Mason University so that we may eradicate them.
• We must build intentional systems and standards of anti-racism that will keep racial injustices from regenerating.
• I want George Mason University to emerge from this exercise as a local, regional, and national beacon for the advancement of anti-racism, reconciliation, and healing.

This task force will have a broad focus, with particular areas of emphasis including short-term and long-term improvements to how we approach:

• Curriculum and Pedagogy
• Campus and Community Engagement
• University Policies and Practices
• Research
• Training and Development

The task force will comprise many of Mason’s luminaries in racial justice, who will be joined by national experts in this topic. Members will be announced over the course of the coming weeks, and they will represent the full diversity of George Mason University, including racial, ethnic, gender, sexual identity, and religious identity.

The recommendations that we act upon will be incorporated into the university’s planning and budgeting process to ensure they have the priority and resources to take root and flourish. I am not interested in reports that sit on a shelf, only to collect dust.

Many reforms at Mason will require thoughtful consideration over time by the task force and university leadership. Others are obvious, overdue, and simply require executive leadership.

So, in keeping with my pledge to deliver actions and not just words, I am announcing immediate steps that we are taking to advance systemic and cultural anti-racism at George Mason University.

The many steps that we have identified are available in their entirety on my website, president.gmu.edu. The categories of immediate steps we are taking include:

Policing

In addition to state-mandated anti-racism training for all police personnel, we will convert the existing Community Police Council into a Police Advisory Board that actively monitors the nature of police activity and reports its findings to me.

University Policies­

A number of university policies and practices that carry racist vestiges in their practices will be examined and/or curtailed, including:

• Faculty salary equity – We will complete and act upon a faculty salary equity review and work with the schools and colleges toward correcting any issues over a three-year period.
• Inclusive excellence planning – At the college and school level, we will establish Inclusive Excellence Plans that articulate the vision and definition of anti-racism and inclusiveness for that unit. The task force will develop a metric-driven template for units to use.
• Implicit bias training – Mason will establish an Inclusive Excellence Certificate Program that certifies that the schools and colleges have completed Implicit Bias Training and have established Inclusive Excellence Plans.
• Implicit bias recognition in faculty promotion and tenure – We will develop specific recommendations for the renewal, promotion, and tenure processes that address implicit bias, discrimination, and other equity issues (e.g., invisible and uncredited labor) to support faculty of color and women in their professional work.
• Equity Advisors in every academic department – Equity Advisors are senior faculty members, appointed as Faculty Assistant to the Dean in their respective schools. Equity Advisors participate in faculty recruiting by approving search committee short lists and strategies and raising awareness of best practices. Additionally, they organize faculty development programs, with both formal and informal mentoring, and address individual issues raised by women and faculty from underrepresented groups.
• Recognizing and rewarding adversity barriers in promotion and tenure – We will develop specific mechanisms in the promotion and tenure process that recognize the invisible and uncredited emotional labor that people of color expend to learn, teach, discover, and work on campus. 

Racial Trauma and Healing

• We will increase the support provided students, faculty, and staff through Mason’s Counseling and Psychological Services for students, and Human Resources for faculty and staff.

Curriculum/Pedagogy

• We will finalize development and implementation of required diversity, inclusion, and well-being coursework.
• We will require an anti-racism statement on all syllabi.

Buildings and Grounds

• We will convene the University Naming Committee to evaluate names of university buildings and memorials to ensure they align with the university’s stated mission to serve as an “academic community committed to creating a more just, free, and prosperous world.”

Community Engagement

• We will grow our K-12 and community college partnerships by 50 percent, and become a true partner in the development of our region.
• We will establish a lecture series on anti-racism and inclusive excellence to establish a collective consciousness among the campus community.

Resource Commitments:

• We will identify associated budget to achieve above immediate actions, beginning with an initial $5 million commitment over three years to strengthen initiatives already underway and to fund critical priorities that need immediate attention.

• We will identify an Executive Director for the Truth, Racial Healing, and Transformation Campus Center.

Leadership in an anti-racism environment demands that we recognize how our history has shaped our view of the world and how our own actions can reshape it.

My vision is nothing short of establishing George Mason University as a national exemplar of anti-racism and inclusive excellence in action. Given the considerable head start we have on most of our sister institutions in the United States, this is a vision we can realize.

So, Patriots, let’s get to work.

Gregory Washington

President

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On September 17, from 12 to about 1:30 PM eastern time, the Indiana University Maurer School of Law and the Law and Economics Center at George Mason University are sponsoring an online event on “Crossing Borders, Breaking Borders: New Ideas about Migration, Secession and Political Freedom.” The event will feature presentations by Indiana law Prof. Timothy Waters and myself, on our respective new books on secession and “voting with your feet.” Registration is free and open to the public. In order to watch, you do NOT have to be affiliated with either university in any way.

The event will also feature commentary by Prof. Sanford Levinson of the University of Texas, who is one of the world’s leading experts on secession, democracy, and its relationship to constitutional theory. Indiana University law school Dean Austen Parrish will introduce the speakers and moderate.

Here is a description from the event website:

For all the expansion of freedom in modern times, most countries’ borders have remained fixed and rigid. And although capital and goods flow relatively freely, human beings’ ability to move between countries or change their citizenship is severely limited. Two new books critically examine these limits, and propose changes. Ilya Somin‘s book Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press 2020) argues for wide-ranging expansion of people’s ability to “vote with their feet” both domestically and across international boundaries. Timothy William Waters‘s book Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press 2020) argues for a radical rethink of the conventional opposition to secession: Is secession dangerous and destabilizing, or a pathway to stability and greater justice for divided societies? Professor Sanford Levinson will comment on both books.

I previously commented on Tim Waters’ excellent book at the Balkinization symposium devoted to it and F. H. Buckley’s American Secession: The Looming Threat of a National Breakup. In this post, I link to Buckley’s and Tim Waters’ response to the commentators, and offered some brief rejoinders. Sandy Levinson was also a participant in the Balkinization symposium. See his contribution here.

 

I look forward to the event!

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So the Oregon Court of Appeals reaffirmed in yesterday’s Lowell v. Wright decision:

Plaintiff Lowell, the owner of a piano store, brought this defamation action against defendant Wright, an individual, and defendant Artistic Piano, a competitor piano store for whom Wright works, after Wright posted a negative Google review about plaintiff’s business….

The court concluded that the review was speech on a matter of public concern, but about a private figure, and that some statements in the review were factual assertions and not just opinion; and this would generally mean that,

Under Gertz v. Robert Welch, Inc. (1974), when the plaintiff in a defamation action is a private party (not a public official or public figure), the First Amendment limits the plaintiff’s recovery of presumed or punitive damages to situations in which the plaintiff proves that the defendant acted with “actual malice” … [—]knew that the statements were false or acted with reckless disregard of whether they were false….

But not in cases where the speakers are ordinary citizens:

The Oregon Supreme Court has expressly held that the First Amendment limitations in Gertz apply only in defamation actions brought by private parties against media defendants. Harley-Davidson v. Markley (Or. 1977); Wheeler v. Green (Or. 1979) (“Although we acknowledge that there is authority to the contrary, we conclude that we were correct when we held in Harley-Davidson … that the rules first announced in Gertz, applicable to cases in which the plaintiff is neither a public official nor a public figure, apply only to actions against media defendants.”).

The Ninth Circuit and a number of other courts have rejected a distinction between media and nonmedia defendants for First Amendment purposes. See Obsidian Fin. Grp., LLC v. Cox (9th Cir. 2014) (holding that “the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers”). However, the United States Supreme Court has historically made a point of referring to the defendants in its defamation cases as “media defendants,” and it has avoided ever addressing whether that caselaw applies equally to nonmedia defendants. In the absence of controlling United States Supreme Court authority, we are bound by the Oregon Supreme Court, not the Ninth Circuit. {Defendants suggest that the Court abolished the media/nonmedia distinction in Citizens United v. FEC (2010), specifically pointing to the Ninth Circuit’s citation to Citizens United in Obsidian. We disagree that Citizens United is dispositive on the present issue. Indeed, the Ninth Circuit itself did not treat Citizens United as dispositive, only as indirectly supportive.}

The court is correct that it’s not bound by Ninth Circuit precedents, only by Oregon state precedents and the U.S. Supreme Court’s precedents. And I can see why it would view Citizens United, which wasn’t a libel case, as not strictly binding here, though I actually think that the language of Citizens United (and its endorsement of five Justices’ views in Dun & Bradstreet v. Greenmoss Builders, which was a libel case) is pretty clear:

“We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting, and White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

In any event, it looks like it’s up to the Oregon Supreme Court to correct this (assuming the defendants ask for review, which I hope they would); and I hope that court does what the Minnesota Supreme Court did last year, when it essentially reversed its previous endorsement of the First Amendment media-nonmedia distinction.

For more on the First Amendment providing equal rights to media and nonmedia speakers, see my article on Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012), the amicus brief I filed in the Minnesota case, or my briefing in Obsidian Finance, which I had litigated as Ms. Cox’s lawyer.

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