Month: August 2018

Yesterday Pinellas County Sheriff Bob Gualtieri responded to criticism that he had misrepresented Florida’s “stand your ground” self-defense law while explaining his decision not to arrest Michael Drejka for fatally shooting Markeis McGlockton. But in attempting to set the record straight during a press conference that lasted nearly an hour, Gualtieri misrepresented his own public comments about the case and the test for arresting someone who uses deadly force.

Drejka shot McGlockton during an altercation at a convenience store in Clearwater on July 19. Surveillance video shows McGlockton, responding to an argument between his girlfriend and Drejka over her decision to park in a handicapped spot, pushing Drejka to the pavement. Drejka, still sitting on the ground, draws a pistol, prompting McGlockton to back away, at which point Drejka shoots him in the chest.

Under Florida law, the shooting was justified only if Drejka “reasonably believe[d]” it was “necessary to prevent imminent death or great bodily harm.” At a press conference the day after the shooting, Gualtieri said this test is “largely subjective,” a claim that was contradicted this week by three key legislators who had a hand in writing the law and the National Rifle Association lobbyist who helped get it passed.

Now the sheriff says he was misunderstood. “It is an objective standard,” he said yesterday, “but it has a subjective component to it because it has to be considered through the lens of the person who used force.” In other words, he explained, “what that person knew, how they knew it, and other factors that are in their heads” are relevant in deciding whether his actions were objectively reasonable “under the circumstances of the time.” That formulation is fine as far as it goes, since the law requires a judgment based on what a reasonable person would have done in the same situation. But that is not what Gualtieri said at his July 20 press conference.

“‘Stand your ground’ allows for a subjective belief by the person that they are in harm’s way,” the sheriff said then, and “we don’t get to substitute our judgment for Drejka’s judgment.” The question, he said, is not “what I would do, what you would do, what the public would do, what someone else would do.” What really matters, he suggested, is “the person’s subjective determination of the circumstance they were in” and “the fear that they had.”

The implication is that if Drejka sincerely feared for his life, he was justified in killing McGlockton, even if that fear was not reasonable in the circumstances. That is plainly not what the law says. Yet Gualtieri continues to imply that it is improper to second-guess Drejka’s assessment of the situation. “Do I think that I would have shot in that situation?” he said in an interview with The New York Times yesterday. “No. But just because I would not have, or don’t believe I would have, doesn’t mean he’s not within the boundaries of the law.”

At yesterday’s press conference, Gualtieri added to the confusion by claiming that Drejka was immune from arrest because it was not “absolutely clear” that the shooting was unlawful. “To arrest,” he said, “it must be so clear that as a matter of law ‘stand your ground’ does not apply in any way to the facts and circumstances that you’re presented with. That is not the situation here. The facts are not so clear that this is absolutely outside the boundaries of ‘stand your ground.'”

Again, that is not what the law says. It says a law enforcement agency “may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.” Probable cause, usually defined as a “fair probability,” is by no means the same as absolute clarity or certainty. Even if you assume that probable cause means something is more likely than not to be true (and it’s not at all clear that it does), it looks like Gualtieri would have been justified in arresting Drejka, since he conceded that Drejka “probably could have” defended himself by brandishing the gun without firing it.

Gualtieri cited the Florida Supreme Court’s 2010 decision in Dennis v. State, which established that defendants raising a self-defense claim have a right to a pretrial hearing on that question, since people who use force lawfully are immune from prosecution under the 2005 “stand your ground” law. The law “grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force,” the court said. “The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.” According to Gualtieri, that means the “stand your ground” law “has taken away law enforcement discretion to arrest unless there is no ‘stand your ground’ [defense] as a matter of law.”

In other words, if Drejka had said he shot McGlockton because he did not like his looks, Gualtieri could have arrested him, because that is not a legal justification. But since Drejka said he shot McGlockton because he reasonably feared for his life, Gualtieri was legally barred from arresting him, because that is a valid justification, no matter how implausible it might seem in this particular case. That reading of the law flies in the face of the authority to arrest someone when there is probable cause to believe his use of force was unlawful. Two weeks ago, Gualtieri said “we don’t have probable cause” to arrest Drejka. Now he seems to be saying something more than probable cause is necessary.

Muddying the waters further, Gualtieri said a 2017 law that changed the rules for pretrial self-defense hearings factored into his decision. Defendants used to have the burden of proving by “a preponderance of evidence” that their use of force was lawful. Now prosecutors have the burden of proving by “clear and convincing evidence” that the defendant’s use of force was not lawful. “The recently created burden that the state has to prove the shooter is not entitled to ‘stand your ground’ immunity by clear and convincing evidence is relevant at this stage too,” Gualtieri said, because people like Drejka have a right “not to sit in jail while all this is sorted out on an issue where the burden on the state is high.”

The logic here is murky. The prosecution’s burden at trial, which is to prove beyond a reasonable doubt that the defendant’s use of force was unlawful, remains unchanged. So does the standard for an arrest, which is still probable cause.

“Absent that immunity from arrest and the recently created burden on the state to prove by clear and convincing evidence that Drejka is not entitled to this immunity,” Gualtieri said, “Drejka would be sitting in jail right now, and the system would be working to figure it out.” In Gualtieri’s view, “when the legislature created Florida’s ‘stand your ground’ law, it said we don’t want people who have arguably acted within [the] law to sit in jail while the state attorney’s office spends weeks or months considering whether to file formal charges.”

Much depends on what Gualtieri means by “arguably,” since someone could have an arguable self-defense claim even if there was probable cause to doubt it. Rejecting the charge that Drejka got a pass because he is white and McGlockton was black, the sheriff noted that he had recently arrested white shooters in cases that the state attorney for Pinellas and Pasco counties, Bernie McCabe, decided not to pursue. But those examples illustrate a point that Gualtieri seems bent on obscuring: The standard for arresting someone who uses deadly force is much weaker than the standard for going to trial or winning a conviction.

Gualtieri emphasized that the McGlockton case is still open and that McCabe will ultimately decide whether to charge Drejka. But if there really is no probable cause to arrest Drejka, how could McCabe hope to convict him?

White House Press Secretary Sarah Huckabee Sanders confirmed on Wednesday that President Trump supports bans against 3D-printed plastic guns.

As Reason‘s Brian Doherty previously reported, Defense Distributed is “a collective that organizes, promotes, and distributes technologies to help home gun-makers.” In early July, the Department of Justice (DOJ) reached a settlement with Defense Distributed in a long-running lawsuit based on government officials maintaining that the sharing of the gun-making files violated munitions export rules located in the International Traffic in Arms Regulations (ITAR). Defense Distributed argued that the legal fight was a First Amendment issue, since what they wanted to distribute were computer software information already widely distributed in the public domain, not actual munitions.

On Tuesday, U.S. District Judge Robert Lasnik ruled in favor of eight states that sued in opposition of the federal government’s settlement with Defense Distributed. Lasnik issued a temporary restraining order against the website’s ability to distribute the files on the basis of that states’ “clear and reasonable fear that the proliferation of untraceable, undetectable weapons will enable convicted felons, domestic abusers, the mentally ill, and others who should not have access to firearms to acquire and use them.”

During a Wednesday press conference, Sanders answered a question about the president’s support of 3D printed plastic guns by saying that the DOJ made a deal without Trump’s approval. Still, Trump approved of the 1988 legislation that banned such devices if they are untraceable by metal detectors.

“This administration supports the decades-old legislation already on the books that prohibit the wholly ownership of a plastic gun,” she told reporters.

Trump previously tweeted that 3D printed plastic guns didn’t “make much sense.”

I am looking into 3-D Plastic Guns being sold to the public. Already spoke to NRA, doesn’t seem to make much sense!

— Donald J. Trump (@realDonaldTrump) July 31, 2018

Following the court’s Tuesday decision, Defense Distributed founder Cody Wilson announced that his website, DEFCAD.com, would go dark in compliance. Wilson removed the plans from the internet. Since that time, a mirror site from called CodeIsFreeSpeech.com appeared. Considering that the advocacy groups behind the new site were not listed as defendants in the suit, they are free from the ruling.

Bonus link: Watch Reason‘s February interview with Cody Wilson here.

Donald Trump is basically gaffe-proof. But that doesn’t mean his factual flubs have nothing to tell us about the man or his policies.

Take what happened in Tampa Tuesday night. Speaking at a rally, the president freewheeled into a rant about the need for Voter ID laws. This is a pretty mainstream Republican idea. Long before Trump was the party’s figurehead, GOP politicians were rattling off the same talking point that Trump hit last night: You have to show ID to buy booze or smokes, you have to show ID before you can board a plane, so why shouldn’t you have to show ID before entering the Holy of Holies of American democracy, the voting booth?

But Trump added something new to the mix. “You know, if you go out and you want to buy groceries, you need a picture on a card, you need ID,” he said. “You go out and you want to buy anything, you need ID and you need your picture.”

To clarify: You do not have to show a photo ID before buying bread, eggs, and milk at the local Kroger.

The media jumped on the gaffe, because it was funny and because it made him seem out of touch. But in the same speech Trump said something just as stupid and far more consequential, and it got much less attention. Dismissing worries about his tariffs, Trump claimed that farmers have reacted to China’s retaliatory trade barriers by saying “it’s OK, we can take it.”

In fact, farmers tend to be pretty unhappy about being caught in the middle of Trump’s trade war. In Iowa alone, the tit-for-tat tariffs with China could cost them more than $600 million this year, according to an Iowa State study. Farmers and their representatives have been some of the loudest voices opposing Trump’s barriers to trade.

Most people in the White House know this. Presumably the president does too. That’s why he’s sending $12 billion in aid to farmers hurt by the tariffs, an effort that hasn’t necessarily won many of them over. “Imagine someone destroys your car and then says I’ll give you a ride to the next place you need to go. Well gee, thanks,” farmer Mike Petefish told the Minneapolis Star-Tribune last week.

Trump and his top economic advisers continue to be brush off the consequences of his trade war. The president has told supporters not to believe stories about steel-consuming businesses having to lay off workers or close their doors, and Commerce Secretary Wilbur Ross has claimed that job losses and higher prices are merely “hiccups along the way.”

But Trump has seemed genuinely stupified by the reaction. After being told by Sen. Jerry Moran (R-Kan.) that farmers “want markets, and not really a payment from the government,” the president expressed surprise. “I’ve never heard of anybody who didn’t want a payment from the government,” he said, according to an account Moran gave to the Associated Press. That’s way more worrying that Trump’s peculiar ideas about buying groceries.

I’m not sure many of Trump’s supporters will really care about his grocery gaffe. Where most politicians try to fake being a regular guy, Trump happily flaunts the extent to which he isn’t like everyone else. He puts his name on the side of huge buildings, rides golden escalators to press conferences, and brags about having never changed a diaper. Almost everything about his personal brand suggests that yes, he’s completely out of touch. That’s been true for years. It hasn’t held him back so far.

Almost anyone who has been successful in national politics is out of touch with regular life. When Hillary Clinton admitted in 2014 that she hadn’t driven a car since 1996, it was treated as a major gaffe. But she was just being honest. You can’t go grocery shopping or pick up your dry cleaning when you’re constantly in a motorcade.

It’s not ultimately very important that politicians can quote the price of milk—a classic “gotcha” question, particularly in Britain. But understanding how their policies affect the people who do have to go to the grocery store every week: That’s important.

Andrea Rich, for decades the skilled and indefatigible operator of the vitally important libertarian bookselling service Laissez Faire Books, has died.

Her career in the libertarian movement was long and varied. Among other things, she was national vice chair for the Libertarian Party in the mid-1970s, worked with the Center for Libertarian Studies in its early years, helped craft a successful national TV ad campaign for Ed Clark’s 1980 Libertarian presidential run, and served on the boards of directors of the Foundation for Economic Education (the first modern libertarian promotional organization), the Atlas Network (which helps free-market institutes around the world), and the Institute for Humane Studies (which trains and supports academics in libertarian thought). She also founded the libertarian book publishing imprint Fox & Wilkes and managed the Thomas Szasz Award for Outstanding Contributions to the Cause of Civil Liberties (which, disclosure, I won in 2011). And her Center for Independent Thought distributed John Stossel’s highly influential market-themed videos to classrooms across America.

In the pre-Amazon age, Laissez Faire Books was often the only way for a far-flung national audience of libertarians to learn of books of interest to them. Its existence, and Andrea’s tough negotiating, made the publication of many libertarian books possible and access to them affordable.

Reason‘s Nick Gillespie eulogized Andrea on Facebook, summing up well the importance of Laissez Faire Books in the pre-Web days:

Every issue of the catalogue was crammed with squibs about books by and about Milton and Rose Friedman, Hayek, Rand, Mises, Rothbard, Rose Wilder Lane (the daughter of Little House author Laura Ingalls Wilder), Lysander Spooner, Voltairine de Cleyre, Tom Szasz, you name it, all held together by mind-blowing essays by Roy Childs and other contributors.

Even more than magazines, catalogues captivated me as a kid growing up in suburban New Jersey….Catalogues offered up endless possibilities, each entry a window into a different world I could imagine living in for a few minutes or hours.

More than any other, the [Laissez Faire Books] catalogue gave me a sense of the world that I would eventually live in for my professional life. At a time when the nearest real bookstore (a tiny Waldenbooks in a mall) was miles away, it gave me tons to look at and think about, broadening my world and options.

David Nott, president of the Reason Foundation (which publishes this magazine) hit on two of Andrea’s prominent qualities in a letter he wrote to her on her retirement. One was her honest but winning ability to have “busted my chops when it has been necessary, speaking truth in a polite way.” The other was her enduring and tolerant “love of the quirky and eccentric characters that make up this movement.” The “networks you have forged,” he wrote, “continue to change the world.”

On a personal note, Andrea and I were on the first-name basis I adopt in this note ever since she agreed back in the mid-1990s to take a chance on this tyro libertarian journalist who’d never written anything longer than a few thousand words. She provided funding via the Roy Childs Memorial Scholars Fund (after an introduction from Chris Whitten, who first convinced me I could write such a thing) for some of the research expenses associated with my book Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.

Her hard-earned and universally good relationships with nearly everyone else in the libertarian world is what likely inclined the vast majority of my over 100 interview subjects to agree to speak to me on the record. Andrea put up with a process that took a lot longer than she anticipated (12 years from her decision to back the book until its publication in 2007) with grace and continued help and encouragement.

Her tireless work, dedication to libertarian thought, and buoyant personality were key to that book working at all, and I am forever in her debt. Any libertarian who bought from Laissez Faire or had his or her education buoyed by the authors she sold and promoted, or any of the work of the many libertarian institutions she supported and guided, are as well.

Andrea is survived by her husband Howard Rich, her longtime partner in supporting libertarian causes.

Plans to build an apartment complex on a vacant lot in Berkeley have attracted heated opposition from neighbors and from city zoning officials. They suggest that the proposed building is too large, that it will block out needed sunlight, and that it resembles the genocide of the Native Americans.

For nearly two decades, a series of developers has tried to put up multi-family housing on a site boarding Shattuck Avenue in this California town. All of those efforts have come to naught. Building permits were granted in 2001 and 2007 for smaller 16-unit and 21-unit projects, respectively, but those withered on the vine and were never built. In 2013, zoning officials shot down a proposal for a 67-unit micro-apartment complex on the grounds that it was much too large and out of character for the neighborhood.

Now a fourth developer—identified as 2701 Shattuck Berkeley, LLC—is taking a crack at the cursed lot. Last Thursday, Shattuck representative Stuart Gruendl presented plans to the zoning board for a 57-unit apartment building comprised mostly of small, 350-square-foot studio apartments, with space reserved for retail business on the ground floor.

The latest design is an “intelligent smart-growth project on a major transit line,” said Gruendl, who described the proposed building as “affordable-by-design,” with five units reserved for very-low-income renters (defined as individuals making $40,700 or less) and the rest rented out for $5 a square foot.

Now, $1,500 a month for a 300-square-foot studio apartment is hardly a bargain in most of the country. But in Berkeley, where the average rent is roughly $3,100 and the average studio rental is $2,200, this is practically a steal.

Far from jumping at the opportunity to approve new housing in their high-priced community, members of the zoning board reacted to Gruendl’s presentation as though he had proposed a zombie apocalypse.

“One of the very first comments I made on the first project on this site I’ll repeat again tonight because it’s still the same problem,” said Board Member Carrie Olson. “You all seen the movie Rear Window? This is an insane invasion of privacy for the folks who live next door. This is not how we do things in Berkeley.”

Other members seconded this view, complaining that building’s size had still not been reduced enough from the 2013 project they rejected.

“The points of denial [for the 2013 project] in substance apply to this project as well,” said Board Member Patrick Sheahan. “It’s simply too big, too large.”

For Substitute Board Member Toni Mester, the building was not just too large; it was in the wrong place. “It’s on the wrong side of the street. If it were on the other side of the street, we wouldn’t have the same issues.” The problem, apparently, was the sunlight the building would block. “Berkleyeans depend on the afternoon sun. It’s what we live for.”

Some of the neighbors seemed perturbed too.

“Berkeley needs to prioritize a livable, sustainable environment for people who already live here,” said Todd Darling, who owns a property next to the proposed development. “Yes, 40 percent of midwestern college graduates want to move to California. But we are not obligated to sacrifice what is best about Berkeley to build dorm rooms for them.”

Darling preemptively dismissed arguments that building more housing would make housing more affordable, saying that the “Pilgrims used the same arguments against the natives in Massachusetts.” And we all know how that story ended!

The 2701 Shattuck development is hardly the only multi-family housing project to attract the ire of Berkeley townspeople. It’s not even the only project on Shattuck Avenue to do so.

Earlier in July, Berkeley’s zoning board shot down a proposal to construct a 23-unit apartment building at 3000 Shattuck. As Berkeleyside reports, similar concerns about that building’s size, dormitory-like interior design, and lack of below-market units persuaded the zoning board to vote against the project, 7–2.

Despite the persistent opposition to the 2701 Shattuck development, the project might yet succeed where others have failed. The state’s Density Bonus law overrides some local zoning restrictions in exchange for renting out some units at below-market rates. And a 2017 amendment to California’s Housing Accountability Act similarly bars local governments from rejecting density bonus projects on the size of the project alone. This limits what Berkeley’s zoning board mostly to demanding aesthetic changes to the project, a fact that clearly frustrated board members at last Thursday’s meeting.

But there is a still a lot of wiggle room for bureaucrats to grind the project to a halt, so the 2701 Shattuck project is hardly over the finish line yet. And even if it succeeds, it will be a drop in the bucket compared to the housing California communities need to build to start bring rental prices down.