Month: September 2020

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

Recently the Eleventh Circuit upheld Florida’s system of allowing former felons to get back their right to vote, even though it makes it very hard for former felons to actually do that. Critics have rightfully decried the ruling, but, unfortunately, it’s based on decades of Supreme Court precedent that many of those same critics have likely endorsed. Director of IJ’s Center for Judicial Engagement Anthony Sanders tells us how supporting the extreme version of the rational basis test in some cases but not others is a bargain with Leviathan that you just can’t win. Click here to read.

• After Congress declined to appropriate funding to Build The Wall, the president moved some money around to build some of it anyway. House of Representatives: Can’t do that. D.C. Circuit: “It is a core structural protection of the Constitution—a wall, so to speak, between the branches of government that prevents encroachment of the House’s and Senate’s power of the purse.” Therefore, the House has standing to sue. The case should not have been dismissed.
• Police planning a no-knock raid on a suspected drug dealer observe him leaving home around 9:00 p.m. Without checking whether the suspect had returned, police conduct the raid the next morning. Within seconds of breaching the front door, police shoot an unarmed houseguest in the stomach. Jury: The officer wasn’t negligent, but the city was. Trial court: The municipality didn’t have a “special relationship” with the plaintiff and therefore had no duty to avoid negligently getting him shot in the stomach. Second Circuit: Not so clear; we’ll let the New York Court of Appeals straighten this out.
• Technology company rescinds job offers after background checks turn up past felony convictions. Two would-have-been employees sue, claiming the company’s policy has a disparate impact on African Americans.  Second Circuit:  Plaintiffs would have us assume that, because African Americans in general are more likely to have felony convictions, the same holds true for African American web developers.  That assumption is not plausible or even logical, so the complaint must be dismissed.
• Grim reading: At the turn of the 20th century, German colonial and military authorities annihilated about 100,000 people in what is now Namibia, killing 80% of the Ovaherero and 50% of the Nama tribes and subjecting many more to slavery, concentration camps, and live medical experimentation. Second Circuit: These terrible wrongs can’t be addressed in U.S. courts.
• After praising the Christchurch massacre online, white supremacist is interviewed by the FBI. He lies to agents about owning a gun, and he’s convicted of making a false statement. Among his conditions of supervised release: monitored internet use and no promoting violence online (or posting at all on violence-promoting websites). Second Circuit: Yes, he was convicted of lying to the feds about a gun, but, in the broader context, these conditions are appropriately related to the crime. The “violence” condition, however, is too vague.
• Stay in your apartment, says Philadelphia 911 operator, and wait for the fire department to come rescue you. But then the 911 operator gives the fire department a wrong address and neglects to mention there’s a family still in the building. Rescue never comes. Third Circuit: Gov’t owes a duty of care when it itself creates a danger; but that rule does not apply here, where the operator merely failed to act. (Two judges separately confer, find this conclusion “troubling” not because it denies liability but because liability might conceivably be imposed in some other case.)
• Allegation: Acting on the advice of his lawyer, Pennsylvania man stands up at a sheriff’s auction to inform bidders that he has an unrecorded interest in a property up for auction. An attorney for the sheriff’s office and an officer promptly place him in a chokehold, stun him, and drag him from the room for violating their unwritten “no comment” rule. A First Amendment violation? Third Circuit: The auction is a nonpublic forum, and the “no comment” rule is a reasonable way to move things along. Probably didn’t need to rough the guy up, though.
• In which Judge Willett, concurring, again expresses himself of the view that “courts should attempt to provide greater judicial guidance” in qualified immunity cases by “explaining whether a right was in fact violated, not merely whether a rights violation was clearly established.” (Nota bene: A pending cert petition authored by, inter alios, the MacArthur Justice Center invites the U.S. Supreme Court to align itself with this view.)
• Courtesy of the Fifth Circuit, here’s a reminder that it doesn’t matter if subject-matter jurisdiction wasn’t raised below. Thus, this challenge to state billboard regulations—removed to federal court by the gov’t, which raised subject-matter jurisdiction just 11 days before appellate argument—is headed back to state court.
• After more than 1,300 cities and counties file lawsuits against opioid manufacturers, the cases are consolidated in the Northern District of Ohio. Attorneys representing 51 of these plaintiffs attempt to certify a “negotiation class” consisting of every city and county in the United States. The trial court certifies the class; objecting municipalities appeal. Sixth Circuit: However “innovative and effective” such a class might be in resolving mass tort claims, it’s not allowed under the Federal Rules. Dissent: The Federal Rules are about making it easier to resolve cases, and that’s how we should interpret the class certification rules.
• After sustaining a blow from a baseball bat, would-be robber is arrested and held in Franklin County, Ky. jail. In the days that follow, he consistently vomits and suffers two seizures before being taken to hospital (where he suffers a third seizure). Sixth Circuit: The jail’s medical personnel were not deliberately indifferent to the man’s medical needs, so his constitutional claims were rightly dismissed. Partial dissent: For three of the nurses, a jury should decide whether they acted recklessly.
• In 1971, a hippie is murdered in Nederland, Colo. The main suspect is the town’s marshal, but he’s not charged until confessing at a nursing home in 1997. Twenty years later, one of the hippie’s friends decides “to take care of some old business” by leaving a homemade bomb at the Nederland police station. (The bomb squad neutralizes it.) He’s sentenced to 27 years. Tenth Circuit: Resentence him. Among other things, shouldn’t have applied that terrorism enhancement.
• Eleventh Circuit: It violates due process for judicial actors to profit from convictions and sentencing decisions and that also goes for quasi-judicial actors, like private probation companies. So a lawsuit against a probation company used by Gardendale, Ala. to impose conditions on probationers and extend their terms of probation, thus increasing the fees the company could extract from them, should not have been dismissed. (IJ filed an amicus brief urging this course of action.)
• And in en banc news, the Fourth Circuit will not reconsider its decision that a school district violated Title IX and the Constitution when it prohibited a transgender male student from using male restrooms. Judge Niemeyer concurs in the denial on the grounds that the panel opinion is so wrong the Supreme Court should take the case directly. Judge Wynn concurs on the alternative ground that the panel opinion is so right that there’s nothing to rehear.

Priscilla Villarreal is a one-person news phenom in Laredo, Texas. Going by “Lagordiloca” (an endearing Spanish nickname meaning “the big crazy lady”), she’s drawn national attention for her bold newsgathering and unfiltered reporting. As a critic of local government and police, she’s also drawn their ire. So they began a campaign of retaliatory actions against her, culminating in her arrest and prosecution under an obscure and seldom used statute against “misuse of public information.” But Villarreal didn’t misuse anything. All she did was ask a confidential police source to corroborate facts about breaking news stories. That’s what Pulitzer Prize winners do every day. So Villarreal sued for retaliatory arrest. But a federal district court granted the officials qualified immunity, holding that they could plead ignorance of the First Amendment by pointing to their reliance on a statute—no matter how obviously unconstitutional or inapplicable. Now, IJ has filed an amicus brief in support of Villarreal, urging the Fifth Circuit to recognize that the district court’s holding is dangerous to a free society and that qualified immunity cannot shield officers who enforce blatantly unconstitutional laws or criminalize core First Amendment activity.

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For decades, horror movies have been vehicles for social commentary. In 1968, director George Romero’s genre-defining zombie film, Night of the Living Dead, served (perhaps inadvertently) as a parable about American racism; its ’70s sequel, Dawn of the Dead, tackled soulless consumerism and suburban ennui. By the time the series reached the George W. Bush era, with 2005’s Land of the Dead, Romero transformed the unending war between humans and zombies into a darkly comic riff on class division and wartime propaganda. His movies were tense, gory affairs about a fantastical otherworld in which the shuffling, flesh-eating undead regularly chased terrified civilians through homes and roads and shopping malls. They were also about the very particular, very normal real world that he, and his viewers, lived in. 

Romero was far from the only director to inject political consciousness into genre filmmaking. In the 1980s, John Carpenter directed a string of beloved genre films—The Thing, Escape From New York, They Live—that reflected his left-leaning sensibilities. More recently, horror has tackled issues like familial trauma and mental health (Ari Aster’s Hereditary) and domestic violence (Leigh Whannell’s The Invisible Man), shading and sharpening prosaic horrors with genre thrills and chills. And thanks in large part to Jordan Peele, whose Get Out and Us directly overlaid the experience of present-day American racism onto horror tropes, the genre has continued to engage with issues of race and discrimination. Part of what made these movies effective was the balance between genre thrills and social commentary, the way that each enabled and expanded the possibilities of the other. 

As big-budget Hollywood studio filmmaking has drifted away from socially and culturally engaged stories and concepts, except in the most superficial way, modestly budgeted horror movies have become one of the few places where these sorts of ideas are consistently explored in popular feature films. Indeed, it is now almost more surprising to see a horror picture that does not attempt some sort of social commentary; it is only a little bit of an overstatement to say that horror has become Hollywood’s op-ed page.

Which brings us to Antebellum. The debut feature from filmmakers Gerard Bush and Christopher Renz, which recently debuted on video-on-demand, Antebellum is social horror movie that offers neither scares nor ideas. Instead, it’s a one-note, one-twist concept in search of a story. 

The film begins with a William Faulkner quote—”The past is never dead. It’s not even past.”—then opens onto a plantation run by Confederate soldiers where slaves are beaten, raped, and forced to perform punishing work in total silence. The central character is a slave, played by Janelle Monáe, who is plotting some sort of escape. But there’s little in the way of narrative momentum or character development until the story eventually appears to shift gears. 

Once again, we meet Monáe, but this time she’s a successful contemporary author who goes on television to debate racial justice, gives TED Talk–style lectures to packed rooms, and casually works references to intersectionality into conversations. Obviously, there’s a connection between the slave played by Monáe on the plantation and the author played by Monáe in the present day, a spiritual or metaphorical link between plantation-era slavery and the black lives of today. 

To explain that link, however, would be to spoil the film’s big twist, which—spoiler alert—is exactly what I’m going to do. 

It turns out that the two Monáes are not connected by spirit or ancestry or anything so metaphorically indirect. Instead, they are literally the same person. The scenes of Monáe as a successful author are actually flashback, at the end of which she is kidnapped by a shadowy cabal led by a stalker played by Jena Malone, then brought to a present slave plantation that is operated for the pleasure of present-day racists, including, it turns out, a sitting U.S. senator. 

That’s it. That’s the movie. There’s barely a story. The characters are paper-thin. The plantation scenes are difficult to watch, and if anything seem designed to capitalize on the very abuses they nominally seek to critique. But they’re not tense or frightening, nor even particularly illustrative, as in something like 12 Years a Slave; the scenes of grotesque violence do little to advance either a narrative or the viewer’s understanding the world. Monáe’s author character, meanwhile, has little to do except deliver pat mini-monologues about racial justice.

At every turn, Antebellum is flat, unpleasant, and empty. The entire film is just a delivery system for a twist whose entire unsubtle point could have been made in the space of a tweet. It’s Faulkner’s quote with handclap emojis. 

Fair enough, you might say: Racism’s legacy is neither subtle nor thrilling, but an omnipresent and awful reality. It’s not made for entertainment. But a movie, especially a horror movie, isn’t reality, and it has to give viewers a reason to want to watch. The most successful genre filmmakers take reality and recast it, shaping it into something else—a story, an idea, a parable, a portrait of a particular person. Romero’s zombie films were visceral, white-knuckle affairs with sympathetic characters; Get Out escalates into a terrifying escape scenario; The Invisible Man draws viewers into a tense, high-stakes cycle of abuse and revenge. All of these films had thrills and ideas in balance, each working to prop up the other. Antebellum has neither enough ideas for an op-ed nor enough scares for a horror movie. It’s an empty twist in search of grander meaning. 

Directors Bush and Renz have described themselves as activist filmmakers dedicated to advancing social causes. But no amount of activism can save such shoddy, underdeveloped material—and from the looks of Antebellum, their activism has clouded their filmmaking judgment. There are no zombies to be found in their film, but politics seems to have eaten their brains. 

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Enabling tens of millions of Americans to get themselves speedily vaccinated against COVID-19 will be a huge logistics challenge. A new policy brief from the Mercatus Center, a think tank at George Mason University, argues that we could greatly accelerate the process by removing the complex state regulations that prevent pharmacists from administering vaccines.

There’s a good chance we’ll need those vaccines to end the pandemic. Herd immunity is the resistance you get to the spread of a contagious disease when a sufficiently high proportion of a population is immune to the illness; you can reach it through either mass infection or mass vaccination.

Epidemiologists generally estimate that the COVID-19 threshold for herd immunity is around 60 to 70 percent. Some researchers believe the number may be much lower than that, but even then we aren’t necessarily near the threshold: Recent testing of nearly 1 million American blood donors from June 15 to August 23 for COVID-19 antibodies finds that only 1.82 percent had them.

Blood donations aren’t a random sample of the population, of course. But in congressional testimony earlier this week, Centers for Disease Control and Prevention (CDC) chief Robert Redfield noted that his agency “is in the process of a very large, sequential study across the entire United States” to measure the presence of antibodies to the novel coronavirus; the stufy will be finalized and likely “published in the next week or so.” According to Redfield, “The preliminary results on the first round show that a majority of our nation—more than 90 percent of the population—remains susceptible” to the novel coronavirus.

So if mass infection isn’t about the get us there, tens of millions of American will need to get vaccinated to achieve herd immunity against the virus. In congressional testimony earlier this week, National Institute for Allergy and Infectious Disease Director Anthony Fauci said that he believes that the U.S. will have produced enough doses of a coronavirus vaccine to distribute to every American by April.

But who will give us those shots? While most states already allow pharmacists to administer many vaccines, regulators have unnecessarily imposed a variety of age restrictions on which patients pharmacists may vaccinate and individual patient prescription requirements.

The Mercatus Center report recommends that state regulators relax age restrictions on pharmacist-administered vaccinations; issue statewide standing orders authorizing pharmacists to administer vaccines without requiring a physician-written prescription for each patient; and revise regulations, as Oregon has, to permit pharmacists to administer all of the vaccines recommended by the CDC’s Advisory Committee on Immunization Practices. The latter recommendation “prevents lag in vaccine administration due to boards or legislatures having to approve individually named vaccines for pharmacist administration.”

Herd immunity is a big goal. Now is the time to unleash America’s 88,000 pharmacies and 314,000 pharmacists to reach it.

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Today the U.S. Court of Appeals for the Sixth Circuit rejected a challenge to Ohio’s laws governing the placement of initiatives on the ballot. The plaintiffs argued that the relevant ballot access provisions imposed an unconstitutional burden in light of the Covid-19 pandemic. The panel, consisting of Judges Sutton, McKeague and Nalbandian, disagreed.

The court’s per curiam opinion in Thompson v. Dewine summarizes the case:

The COVID-19 pandemic has upended life in many ways. In response to the unfolding public health crisis, states across the country imposed various orders in hopes of containing the virus. Ohio, for its part, asked its citizens to stay at home and restricted the size of gatherings.

This case, which we’ve seen before, involves the intersection of COVID-19, the state’s responses to that pandemic, and some of Ohio’s conditions that must be met before a ballot initiative can get on the ballot for Election Day. See Thompson v. DeWine, 959 F.3d 804, 806 (6th Cir.) (per curiam), mot. to vacate stay denied,—S. Ct. —-, No. 19A1054, 2020 WL 3456705 (2020).

Plaintiffs say that Ohio’s ballot initiative conditions are unconstitutional as applied during this pandemic and request that the federal courts relax them, at least for the time being. Plaintiffs’ challenge is a curious one. There is no question that Ohio’s ballot initiative conditions are, standing alone, constitutional, there is no question that Ohio is not responsible for COVID-19, and Plaintiffs are not challenging Ohio’s restrictions on public gatherings and the like, which Ohio imposed to address the pandemic—so we assume those are constitutional as well. And yet, Plaintiffs contend that when you put all of this together, in effect, two constitutional rights plus one outside catalyst make one constitutional wrong. The district court agreed and granted a preliminary injunction. We stayed that order because we disagreed. And now, because we still disagree, we reverse the district court’s grant of a preliminary injunction

From later in the opinion:

we note that the Federal Constitution gives states, not federal courts, “the ability to choose among many permissible options when designing elections.” Id. We don’t “lightly tamper” with that authority. Id. Instead, the power to adapt or modify state law to changing conditions—especially during a pandemic—rests with state officials and the citizens of the state.

So while federal courts can sometimes enjoin unconstitutional state laws, we can’t engage in “a plenary re-writing of the State’s ballot-access provisions.” Esshaki, 813 F. App’x at 172. Instead, “[t]he Constitution grants States broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ which power is matched by state control over the election process for state offices.” Clingman v. Beaver, 544 U.S. 581, 586 (2005) (citations omitted).

We don’t have the power to tell states how they should run their elections. If we find a state ballot-access requirement unconstitutional, we can enjoin its enforcement. See, e.g., Esshaki, 813 F. App’x at 172. But otherwise, “state and local authorities have primary responsibility for curing constitutional violations.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Esshaki, 813 F. App’x at 172 (holding that it “was not justified” for a district court to extend the deadline to file signed petitions and order the state to accept electronic signatures).

So when the district court here ordered Ohio to accept electronically signed and witnessed petitions and extended the deadline for submitting petitions, it overstepped its bounds. It effectively rewrote Ohio’s constitution and statutes and “intrude[d] into the proper sphere of the States.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., concurring); see Thompson, 959 F.3d at 812 (“[T]he district court exceeded its authority by rewriting Ohio law with its injunction.”). Federal courts don’t have this authority.

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