Month: June 2020

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

California taught Dario Gurrola how to fight fires while he was in custody, paying him $2–$6 per day. Now that he’s paid his debt to society, however, state licensing restrictions bar him from becoming a full-time firefighter. This month, Dario and IJ filed suit to challenge those restrictions. Vice News has the story.

New on the Short Circuit podcast: Clark Neily of the Cato Institute (who is also a founding member of the podcast) rejoins the panel to talk gym closures in Michigan and a high-profile prosecution in D.C.

• High-ranking former Trump Administration official pleads guilty to making false statements. But wait! The feds seek to dismiss the prosecution, a move that requires “leave of court.” D.C. Circuit (over a dissent): Which means the court must dismiss the case (unless the defendant objects).
• Federal law gives the Secretary of Homeland Security the “sole and unreviewable discretion” to subject certain aliens to expedited removal. Last year, the secretary expanded the reach of the removal process to cover all undocumented immigrants who had been in the U.S. for less than two years. Three organizations whose members are covered by this expansion file suit. D.C. Circuit: Sorry, but “sole and unreviewable discretion” means that you lose on the merits. Dissent: Ridiculous! “Sole and unreviewable discretion” means that they lose on jurisdiction!
• In 2015, the DOJ indicted several officials of the global soccer organization FIFA, who were ultimately convicted of, among other things, conspiracy to commit honest services wire fraud. FIFA officials: That’s impermissible extraterritorial application of the law; our conspiracy occurred entirely on foreign soil. Second Circuit: Ah, but you were charged with conspiracy to commit honest services wire fraud, and some of the bribes you received came from accounts at U.S. banks, which is enough of a domestic hook to support the convictions.
• The Third Circuit ably distills the differences between standing and mootness in an opinion that does little good for the plaintiffs, whose case is moot.
• Must statutory challenges to federal redistricting be heard by a three-judge district court? Or is the ordinary one judge fine? Fifth Circuit (en banc): All of us agree the case is moot because the election is over, but we are, nevertheless, in stark disagreement about the answer to that question of statutory interpretation.
• Only twice has the Supreme Court ever struck down a law for violating the nondelegation doctrine, which holds that Congress may not delegate its legislative authority to another branch of government or a private party. “Ever. And none in more than eighty years.” And, says the Fifth Circuit, a vaping industry challenge to Congress’ delegation of authority to the Secretary of Health and Human Services (to determine if vaping products should be regulated like tobacco products) is not likely going to snap the nondelegation losing streak. [Ed.: Though we humbly suggest that at IJ we have a case that totally will.]
• In 2009, the state of Ohio tried and failed to execute a prisoner, giving up after attempting for two hours to maintain an IV line through which to administer lethal-injection drugs. Sixth Circuit: Now on habeas review, we can’t say that trying again would amount to cruel and unusual punishment or double jeopardy.
• Inmate at Ill. state prison sues guards. District court (March 2016): If the guards wish to argue that the inmate failed to exhaust his administrative remedies, they must file a motion to that effect by April 27, 2016. Guards don’t file a motion by April 27. Or by the end of discovery eight months later. Nor do they raise exhaustion in their summary-judgment motion three months after that. Then, two months before trial, they ask to file a new summary-judgment motion, raising exhaustion. Yikes! The basis for their delay? “[U]nknown reasons.” District court: Good enough for gov’t work. Seventh Circuit: Decidedly not good enough for gov’t work. To trial the case must go.
• Page six of this Seventh Circuit opinion features the sort of footnote that gives litigators the willies.
• In 1972, East Chicago, Ind. officials build public housing on former lead smelting and processing site. In 2016, the city orders 1,000 residents to leave; there are wildly unsafe levels of arsenic and lead in the soil. Seventh Circuit: The residents’ suit against the companies that operated on and near the site from 1906 to 1970 must go in federal, rather than state, court.
• Arkansas police stop speeding motorcyclist (confusing him with a different motorcyclist with a very similar bike and clothing who’d evaded police stops), tase him without warning while he’s fidgeting with his bike. Excessive force? Eighth Circuit: Qualified immunity. You can’t tase people suspected of a nonviolent crime without warning, but he was suspected of seriously reckless driving and could have been about to flee.
• Can the government make it a crime to truthfully report actors’ ages on websites like IMDB.com? The answer—per the Ninth Circuit—will absolutely not surprise you.
• Investigating an abandoned trailer, Beckham County, Okla. deputy sheriff determines that former police chief stole it from an Anderson, S.C. church, arrests him. The former chief is subjected to a body-cavity strip search at booking, and the sheriff puts out a press release full of incriminating allegations from the warrant affidavit. Yikes! Turns out the church had two trailers and mixed up the VINs—the former chief’s trailer was not stolen but validly purchased. Double yikes! The former chief had campaigned for the sheriff’s opponent in the election—might this all be retaliation? Tenth Circuit: The arrest was proper, the press release fine. But “[b]ody-cavity strip searches are not so trivial” as to be universally conducted on all detainees.
• Schizophrenic pretrial detainee at Rio Grande County, Colo. jail exhibits a variety of distressing behaviors culminating with him removing his eyeball from its socket. Staff restrain him as he attempts to remove the other eyeball. Officers: We checked on him every 15 minutes, as medical professionals advised. Tenth Circuit: That’s disputed, and since you failed to challenge whether the law was clearly established, the detainee’s suit can proceed.
• Lakeland, Fla. officials move 26-foot-tall marble cenotaph honoring Confederate dead from one city park (where it’s been since 1910) to another. Eleventh Circuit: Plaintiffs who oppose the move (including one who wishes to “‘vindicate the cause’ for which the Confederate Veteran fought”) lack standing to press First Amendment and due process claims.
• The Eleventh Circuit goes en banc to unanimously reverse precedent holding that people lack standing to bring Fourth Amendment claims if they have abandoned their privacy interests in the objects being searched. Judge Rosenbaum, concurring: I wrote that earlier precedent, and it’s totally wrong.
• Woman sees dark-clothed men rush toward her back door in East Dublin, Ga. late one night, and she wakes her husband. Having been robbed the day before, the couple feared they were being robbed again; the husband grabs a shotgun and goes to investigate. He’s shot 23 times. Turns out it’s a SWAT team executing a drug raid sparked by the man who’d robbed them the day before—he told police he thought the husband was a meth dealer. The husband, a grandfather and the owner of a construction company, dies. Police find no drugs on the property. Eleventh Circuit: No qualified immunity for a cop who lied and omitted key info in his warrant affidavit. And the widow can pursue punitive damages against him.
• Pretrial detainee at Clayton County, Ga. jail shares candy with his cellmate, another pretrial detainee who was also arrested for a nonviolent crime. (Neither has a history of violent felonies.) The cellmate demands all the candy and beats the first detainee to death when he declines to turn it over. Allegation: The jail’s intake procedures don’t adequately screen for violent misdemeanors, leading to nonviolent detainees sharing a cell with violent detainees. Eleventh Circuit: Plaintiffs haven’t shown a constitutional violation.

Allowing ex-offenders to earn an honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. A new IJ report details the numerous methods state licensing boards use to deny credentials to otherwise qualified applicants. In multiple states, an applicant can be denied a license without any consideration of their rehabilitation or on the basis of any felony, even if the crime is completely irrelevant to the license sought. Licensing boards can even disqualify applicants over their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For more information and to see how your state treats ex-offenders, read Barred from Working.

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There is overwhelming evidence that the criminal justice system is racist.

That was the resolution of an online Soho Forum debate held on Wednesday, June 24, 2020. It featured The Washington Post‘s Radley Balko and the Manhattan Institute’s Rafael Mangual. The debate was moderated by Soho Forum Director Gene Epstein.

Arguing that America’s criminal justice system is, in fact, racist was Radley Balko, an opinion writer for The Washington Post. A former editor at Reason, Balko is also the author of Rise of the Warrior Cop and co-author of The Cadaver King and the Country Dentist.

Defending America’s criminal justice against the charge of racism was Rafael Mangual, the deputy director of legal policy at the Manhattan Insitute, who is also a contributing editor for City Journal. Mangual’s writing has appeared in The Wall Street Journal, The Atlantic, the New York Post, the Boston Herald, and The Philadelphia Inquirer.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Tuesday, June 30, 2020, at noon EST.

Produced by John Osterhoudt.

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“The virus teaches us something. It’s a wakeup call,” says Philip K. Howard, the founder of the nonprofit Common Good and author of such bestsellers as The Death of Common Sense: How Law Is Suffocating America and The Rule of Nobody: Saving America from Dead Laws and Broken Government. “The reason it spread through the country is because public health officials were delayed by over a month while they waded through the red tape of Washington to get approvals to start testing.”

Howard is not a libertarian, but he believes strongly in a limited, effective government that comes close to the libertarian vision. In the video below and through an effort called the Campaign for Common Sense, Howard pulls together an interesting set of Reason-adjacent policy wonks and pols—including former Indiana Gov. Mitch Daniels, former Indianapolis Mayor Stephen Goldsmith, and Free-Range Kids author Lenore Skenazy—to push for reducing the sheer number of rules governing virtually every aspect of our personal and commercial lives. (Howard often cites “the 5,000 rules for a family-owned orchard” as an example.)

It’s an appealing vision, and one sketched out in detail in Howard’s 2019 book, Try Common Sense. (Go here for a podcast interview I did with Howard). In a recent interview with The Washington Examiner, Howard calls for a “spring cleaning” of old and outdated regulations:

I’ll give you an example of a program in Australia a couple of decades ago. They replaced their thick rulebook on nursing homes with 31 general principles. Have a home-like setting, respect the dignity of the residents, and such. Experts scoffed. But before, the nursing-home operators were getting away with murder; within the year, the nursing homes were twice as good. They ran a study, and what they found was when people came to work and they didn’t have their noses in the rulebooks, they could internalize these principles, and they could focus on what the residents needed. And they could run their nursing homes in different ways. Most states have something like a thousand rules for their nursing homes. It’s just absurd. You’ve got to have two pictures on the wall, the window has to be this big, so many peas on the plate. It’s unbelievably granular.

The policy specifics will be rolled out over the course of the summer, but some are already public. For instance, when it comes to liability issues related to COVID-19 and the welfare of workers, the group calls for a “a special administrative court [that] will achieve the reliability needed to avoid chilling recovery. It will also avoid clogging regular courts with COVID claims.” Another plank takes aim at ending unjust protections for public employees such as cops and teachers (“in a typical year, only two of California’s 300,000 teachers are dismissed for poor performance”).

If the protests in the wake of George Floyd’s killing show anything, it’s that public opinion can coalesce rapidly around longstanding grievances. It’s unlikely that the changes the Campaign for Common Sense is calling for will explode into the public consciousness the way that calls for police reform have. But in a long summer featuring two generally unpopular candidates for president, voters might be more interested than usual in hearing about sensible pragmatic reforms.

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Last night Fox News host Tucker Carlson vigorously defended qualified immunity, the doctrine that allows public officials to avoid federal civil rights lawsuits if the way they violated your rights has not been outlined with exacting detail in previous case law.

Carlson offered an alternative definition for his viewers. “Qualified immunity means that cops can’t be personally sued when they accidentally violate people’s rights while conducting their duties,” he said. “They can be sued personally when they do it intentionally, and they often are.”

There are a few problems with the statement, the largest being that it is not true.

Qualified immunity provides no distinction between accidental and intentional rights violations. A quick review of previous qualified immunity rulings proves as much. Consider the cops in Fresno, California, who were granted qualified immunity after allegedly stealing $225,000 while carrying out a search warrant.

It was not an accidental robbery, and the U.S. Court of Appeals for the 9th Circuit acknowledged as much in their ruling last September. Though “the City Officers ought to have recognized that the alleged theft was morally wrong,” the unanimous panel wrote, it concluded that they “did not have clear notice that it violated the Fourth Amendment.” They both received qualified immunity.

Translation: The officers should’ve known that stealing from someone is morally and legally indefensible. But without a court precedent spelling that out for them, the two were off the hook, leaving the plaintiffs no recourse. That is how qualified immunity works in practice.

“Civil immunity has precisely nothing to do with anything that happened in the George Floyd case,” Carlson continued. “Just in case you were wondering, that cop is in jail.”

Again, that represents a fundamental misunderstanding around where and when qualified immunity applies. The doctrine solely pertains to civil liability—a public official who breaks the law and is awarded qualified immunity is not protected from criminal prosecution. The two are entirely unrelated, although it’s worth noting that state prosecutors often decline to bring such charges in the first place.

Put more plainly, former police officer Derek Chauvin may indeed receive qualified immunity from any civil suit brought by the family of George Floyd—the unarmed man who died after Chauvin dug his knee into Floyd’s neck for almost 9 minutes—even if Chauvin’s trial yields a murder conviction.

Carlson continued:

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split-second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional. Sometimes the very laws they enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally. They could be bankrupted they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a police officer.

There’s quite a bit to unpack there. First, as Institute for Justice attorney Patrick Jaicomo notes, qualified immunity has nothing to do with reaction times but “is about whether the right that was violated was ‘clearly established.'” That standard was established by the Supreme Court in Harlow v. Fitzgerald (1982) in spite of Section 1983 of Title 42 of the U.S. Code, the statute that previously allowed the American public to sue for violations of their constitutional rights. It’s the epitome of the high court legislating from the bench, something conservatives typically oppose.

But perhaps Carlson’s most significant misinterpretation is his claim that cops are only caught in compromising situations when they “sincerely and reasonably” believed their misconduct was both legal and constitutional. Such a claim can only be explained by a lack of familiarity with qualified immunity case law. Take the cop who received qualified immunity after shooting a 10-year-old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog.

There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15-year-old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that such courses of action were morally bankrupt.

Then there’s the notion that police officers would lose their homes and leave the force in droves should qualified immunity meet its demise. Puzzlingly, that claim hinges on the assumption that a slew of officers would lose their cases—a tacit acknowledgement that police culture needs to change.

But even so, cops themselves are almost never on the hook for the bill. Cities are. It’s certainly still not an ideal solution for taxpayers, but until police departments can grapple with reform, it’s an option that should be available for those who have their rights flagrantly violated by those that swear to protect and serve.

Incidentally, qualified immunity does not apply only to those who take that oath. It applies to all public officials. That includes, for instance, university administrators who have infringed on students’ due process rights. Carlson has been beating the campus culture war drum for a while. I assume he would not support qualified immunity in those cases, though one wonders if he knows it applies.

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There is overwhelming evidence that the criminal justice system is racist.

That was the resolution of an online Soho Forum debate held on Wednesday, June 24, 2020. It featured The Washington Post‘s Radley Balko and the Manhattan Institute’s Rafael Mangual. The debate was moderated by Soho Forum Director Gene Epstein.

Arguing that America’s criminal justice system is, in fact, racist was Radley Balko, an opinion writer for The Washington Post. A former editor at Reason, Balko is also the author of Rise of the Warrior Cop and co-author of The Cadaver King and the Country Dentist.

Defending America’s criminal justice against the charge of racism was Rafael Mangual, the deputy director of legal policy at the Manhattan Insitute, who is also a contributing editor for City Journal. Mangual’s writing has appeared in The Wall Street Journal, The Atlantic, the New York Post, the Boston Herald, and The Philadelphia Inquirer.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Tuesday, June 30, 2020, at noon EST.

Produced by John Osterhoudt.

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