Month: November 2019

The Transportation Security Administration made us all a little safer this week by confiscating a gun. The “gun” was actually a toilet paper roll, but surely that’s just a small detail.

“How not to roll through a checkpoint…” the agency joked in a Thursday press release. According to the release, a passenger attempted to board a plane with a gun in his carry-on. But it wasn’t just any firearm! This gun was actually a replica of a revolver, outfitted to, as the press release states, “spin toilet paper” instead of bullets.

The Associated Press reports that the passenger was given three options: to put the item in a checked bag, give it to a friend outside of the airport, or give it to the TSA. He went with the third option.

The TSA’s website includes a list of restrictions on toy guns. While there is some leeway for fake weaponry, the agency prohibits “items that resemble realistic firearms or weapons.” TSA officers also have the discretion to confiscate an item they believe “poses a security threat.”

It is ridicuous, of course, to claim that a toilet paper holder—even one fashioned from an old and defunct gun—is a legitimate threat to national security. It’s about as dangerous as a drag queen’s fake boobs. But that didn’t stop the TSA not just from seizing it but from patting themselves on the back for everyone to see. They can’t help it. The agency rarely misses a moment to post its quirky catches on social media. Just a few weeks ago, it showed off a gun-shaped radio with captions to the tune of “Wonderwall.”

Meanwhile, federal reports in 2015 and 2017 have shown that the agency misses the overwhelming majority of contraband smuggled onto planes. I hope the TSA is enjoying its latest catch. I wonder what it missed in the meantime.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Indiana Supreme Court articulated a new test for determining when fines and forfeitures are unconstitutionally excessive—a test that we advocated for and that requires judges to evaluate (among other things) the real-world impact of a fine or forfeiture on the property owner. Huzzah! The decision follows on the heels of a U.S. Supreme Court decision earlier this year finding that the Eighth Amendment’s prohibition on excessive fines does indeed apply to state and local governments. Click here for more.

• IRS Manual: We have a “database” of civil forfeiture information called the “Asset Forfeiture Tracking and Retrieval System.” Institute for Justice FOIA request: We’d like that database, please. IRS: Actually, it’s not a database, so FOIA doesn’t apply, but here are some incomplete and heavily redacted printouts. Trial court: Good enough. D.C. Circuit: Decidedly not good enough. “Absent further evidence to the contrary, it seems safe to say that if AFTRAK is a database, the Institute is entitled to more than has been delivered, very possibly much more.” (This is an IJ case.)
• Under Medicaid’s free-choice-of-provider provision, “any individual” eligible for Medicaid has the right to obtain treatment from “any institution” willing and qualified to provide services, and state plans “must” comply with that directive. Can a patient who previously obtained birth control through Planned Parenthood sue in federal court to enforce this right after South Carolina terminates Planned Parenthood’s Medicaid enrollment agreement? Fourth Circuit: Absolutely. Congress could have made an exception for providers of abortion services if it wanted to, but it didn’t
• In the course of executing a search warrant on the office of a man the Fourth Circuit identifies only as “Lawyer A”—but whom the Baltimore Sun identifies as a prominent Baltimore defense attorney—IRS agents seize thousands of documents covered by attorney-client privilege and the work-product doctrine. But don’t worry! We’ve established a “filter team” of prosecutors from the same district who will pick out all of the privileged stuff and make sure none of it goes to their colleagues on the prosecution team. Fourth Circuit: That doesn’t sound remotely fair.
• Mother of a special needs student in Dallas public school files a Title IX complaint, alleging the school failed to protect her daughter from a fellow student who raped her in the class bathroom following a previous history of assault. District Court: Sorry, even though you sued under Title IX, you could have sued under a different law that requires you to exhaust your administrative remedies. Administrative hearing officer: Sorry, but now it’s too late to exhaust your administrative remedies. District court: Well then, I guess you’re just out of luck. Fifth Circuit: That is not how Title IX works. Case un-dismissed.
• If a union has a problem with an employer and goes on strike, federal labor law prohibits it from encouraging “secondary boycotts,” that is, strikes by employees at other businesses in an effort to increase the original union’s leverage with the employer. Which sounds an awful lot like a restriction on speech with a particular content. A First Amendment violation? Ninth Circuit: Modern First Amendment precedent might suggest so, but we’ll stick with the precedent from 1951.
• Woman taxis home from a bar, incurring a $16.70 cab fare. Her credit card declined, cabbie calls the cops. Woman offers to go into her apartment to get cash, after which Newport Beach, Calif. cops barge in after her, handcuff her, and arrest her. Ninth Circuit: No qualified immunity for the arrest. The police lacked even arguable probable cause that the woman committed a crime.
• The federal government gives out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from cities—like Los Angeles—that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Ninth Circuit (brushing off its dictionaries and canons of construction): Congress has never delegated the authority to the AG to place blanket conditions like this on the receipt of grants. (Third time is not a charm for the AG.)
• Allegation: Woman gets a restraining order against her abusive husband. With police escort, he returns to their Cheyenne, Wyo. home to pick up some of his things. Afraid, the woman steps behind the officer, brushing the officer as she moves. The officer yanks her arm, hits her, arrests her, gets her charged with a felony he knows to be bogus, and gives false testimony against her. (She’s acquitted after spending several months in jail.) Excessive force? Illegal detention? Malicious prosecution? The Tenth Circuit says no. Qualified immunity.
• A criminal on the lam holes up in a Greenwood Village, Colo. family’s home. What follows is a 19-hour standoff in which police fired tear gas grenades into the home, smashed down the door, set off explosives to open lines of sight, and ultimately smashed down the walls with an armored vehicle so that a SWAT team could apprehend the fugitive. Police take him alive, but the house is rendered completely uninhabitable. City: Sorry we destroyed your home; here’s $5k for temporary living expenses. Tenth Circuit: And the city didn’t even need to give you that much; this exercise of the police power is not a taking that requires just compensation.
• Fugitive flees a Pensacola, Fla. motel with police in hot pursuit. When he gets away, they search his motel room (on the off chance he came back). Then, after checkout time, they search his room again. The first search reveals a gun, the second, drugs. Eleventh Circuit: No suppressing the evidence. The fugitive can challenge the first search, but he loses because it was reasonable. And no way to challenge the search after checkout time. It wasn’t his room anymore. [An interesting concurrence features the Circuits’ first use of “rope-a-dope.”]
• Did the Democratic National Committee tilt the 2016 primary in favor of Hillary Clinton over Bernie Sanders? Eleventh Circuit: We can’t feel the Bern when the complaint’s missing key facts. Dismissal affirmed.
• Police officer goes door to door, questioning Glen Burnie, Md. residents about a spate of burglaries. Residents at one home don’t immediately answer, but their dog—a rigorously trained Chesapeake Bay Retriever named Vern—nudges out the screen door. The officer shoots Vern twice, killing him. Jury awards owner $1.3 mil in tort damages, which the trial court reduces to $207k. Maryland appeals court: Actually, make that $200K. (via @MDAppeal)
• Man pleads guilty to a bevy of charges brought by Clayton County, Ga. prosecutors arising from incident that began in Clayton County and ended in Fulton County. As part of the deal, more serious charges against him are abandoned. Can prosecutors in Fulton County subsequently re-indict him on the more serious charges? Georgia appeals court: No. (Via @ASFleischman)
• And in en banc news, the Seventh Circuit will not reconsider its decision barring Indiana from enforcing a law that bars abortions based on race, gender, or diagnosis of a disability.

Lynn Schofield, an African-style hair braider, once owned multiple salons, but she’s been forced to shut down all but one. Even though demand for braiding services is through the roof and there is no shortage of capable braiders seeking work, Schofield can’t hire enough braiders because the Louisiana State Board of Cosmetology imposes irrational licensing requirements—requirements that the Louisiana State Legislature never authorized—like 500 hours of unnecessary and irrelevant training. This week, a judge in Baton Rouge allowed Schofield’s lawsuit challenging the requirements on economic liberty and separation-of-powers grounds to proceed. Click here to learn more.

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Two of California’s greatest passions are colliding: NIMBYism and In-N-Out Burger.

In September, the people of Rancho Mirage learned that the regional burger chain intended to establish a new location in the vacant corner of a shopping center in their southern California city. Given the almost cult-like acclaim In-N-Out has attracted in California and across the Southwest, many residents were thrilled at the news. In letters to the city council, some expressed excitement about the prospect of having another place to grab a quick lunch. Business owners in the shopping center were happy too, figuring that the big-name brand could bring more customers to their stores.

By the end of the month, the city’s Planning Commission had voted to approve In-N-Out’s Rancho Mirage location. In October the city council gave its assent as well.

But not everyone was thrilled at the prospects of In-N-Out setting up in the city. A group comprised mostly of homeowners near the proposed site objected to the added noise, traffic, and emissions that they feared the restaurant would bring.

They also objected to the way in which the authorities had approved the project. The city had rezoned In-N-Out’s property to allow for a fast food restaurant and declared that the project qualified for an exemption from the California Environmental Quality Act (CEQA)—a state law that requires projects be studied for significant environmental impacts.

As the In-N-Out project worked its way through the planning process, these opponents—who’d organized themselves under the group Save Rancho Mirage—submitted critical comment letters to city officials, picketed the proposed site of the restaurant, and showed up at public hearings to demand the project be stopped.

“Last Spring, much of the country was shocked to learn that elite members of society ignored the rule of law and bought their way into prestigious colleges,” one opponent wrote to the city council. “Watching the Rancho Planning Commission ignore the rule of law last month as it railroaded through a recommended zoning change, a conditional use permit for In-N-Out, and other related proposals was just as bad.”

When these protests proved ineffective at stopping city approval of the project, Save Rancho Mirage filed a lawsuit. It argues that the city had violated CEQA and illegally rezoned the site. The very popularity of In-N-Out, they claim, all but assures there will be significant environmental impacts that need to be studied and addressed.

“The traffic, noise, gas-house emissions and otherwise overall environmental degradation of these restaurants on surrounding neighborhoods is known to the public at large and is storied,” says the suit. “It is a love affair that the public has with this restaurant that also brings an unfathomable burden on a surrounding neighborhood.”

Local ABC affiliate KESQ reports that In-N-Out has committed to traffic mitigation measures if congestion proves a problem. This hasn’t been enough for the opponents, who are demanding that any activity on the In-N-Out project be stopped, that a full environmental impact report be performed, and that the city pay the plaintiffs’ attorney fees.

Accusations that a project has failed to satisfy CEQA’s requirements is a common tactic among anti-growth groups. The law has been invoked in order to homeless shelters, apartment complexes, hotels, and even single-family homes.

If the lawsuit succeeds, you can add In-N-Out to the roll call of CEQA’s victims. And even if the legal action fails, they still have managed to cost In-N-Out—not to mention its future customers and employees—both time and money.

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The Apollo. HBO.  Wednesday, November 6, 9 p.m.

Stand-up comedian Moms Mabley has just come on stage, meandering through the setup to an innocuous joke, when a film clip suddenly flashes behind her: a bedraggled black man racing just ahead of three billyclub-swinging white cops.  The crowd roars with laughter as Mabley helplessly throws up her hands and innocently asks: “Did I say something funny?”

So it went at Harlem’s Apollo Theater, for four decades the 20th century’s greatest showplace for and birthing ground of black entertainment.

From its birth in the mid-1930s to its abrupt decline in 1970s in the face of Harlem’s drug-crime problems and the changing economic model of the entertainment business, the Apollo was king.

From Lena Horn to Lauryn Hill, from Bojangles Robinson to Jimi Hendrix, everybody who was anybody in black show business played the Apollo. And now Oscar-winning filmmaker Roger Ross Williams (Music by Prudence) has captured the excitement in an HBO documentary, The Apollo.

Actually, the Apollo has a storied past in white entertainment, too, hosting everybody from Buddy Holly to Guns N’ Roses.  (Even Bernie Sanders got into the act a couple of years ago.) And there was always a substantial number of white faces out in the audience as well.

But in a world where black entertainers were mostly restricted to the rough-and-tumble little venues of the so-called Chitlin’ Circuit (booked mainly by TOBA, the Theater Owners Booking Associations, a.k.a. “Tough On Black Actors”) and black audiences were largely excluded from even Harlem venues like the Cotton Club, it was the African-American side of the Apollo that was a cultural landmark.

James Brown’s 1962 album Live at the Apollo got hardly a minute of white radio airplay but spent 66 weeks on the Billboard charts and turned him into a national sensation.  (Later Brown would introduce his anthemic “Say It Loud, I’m Black And I’m Proud” on the Apollo stage. ) Ella Fitzgerald gave her first performance there, Michael Jackson his last. When black audiences turned against Earth Kitt after her marriage to a white real-estate developer, she won them back with a smokingly sensuous dance routine at the Apollo.

Filmmaker Williams had access to a wide variety of Apollo film archives, and used it well in making his documentary, weaving seemingly disconnected incidents into narrative chapters.

One of the most interesting stems from the Apollo’s willingness to book small-time and unpolished acts into a top venue. (The Apollo even had a weekly amateur night where infamously brutal audiences would vote with catcalls, jeers and, occasionally, applause about whether performers would get a regular spot.) Many Apollo first-timers were getting a harsh introduction to show business.

Smoky Robinson recalls the furious reaction of the Apollo house band when he showed up without written arrangements of his songs that regular Motown musicians played from memory.  Another artist on the bill that night, Ray Charles, had to create arrangements on the spot while listening to Robinson play his tunes on the piano.

And Gladys Knight and the Pips recount an even ruder introduction. They arrived for their appearance, did a few songs, and then headed to the dressing room to pack their bags. “Where are you going?” asked an Apollo stagehand. “You’ve got three more shows to do.”

Yet many a harsh first night blossomed into a glorious career.  Ella Fitzgerald walked into one of the first Apollo amateur nights in 1934 thinking she was a pretty fair dancer. But the act before hers was a sizzling pair of tap-dancers, the Edwards Sisters, or as Fitzgerald called them, “the gassingest dancers in the world … No way I’m going out there to try to dance.”

Instead, she tried singing a song from an old Connee Boswell record of her mother’s called “Judy.“ The audience, tentatively, clapped, and Fitzgerald’s dancing career was over. Forty million records later, it seems the Apollo audience got it right.

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