Month: November 2020

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

Friends, Season 2 of Bound By Oath, “No Right Without a Remedy,” commenced this very week. It is a very excellent podcast. We know because we made it.

• Martin Van Buren, an employee of D.C.’s Metro transit system, grows angry after a fellow employee helps a customer operate a fare card machine in Arlington, Va.—and thus beats his colleague so badly he required hospitalization. Yes, you read that right. D.C. Circuit: The injured employee must look to Virginia’s workers compensation law for a remedy.
• Fifteen-year-old gang member participates in the execution-style killing of four teenage members of a rival gang. The district court, departing downwards from federal sentencing guidelines, sentences the juvenile to 55 years in prison with no possibility of parole. Second Circuit: We assume, without deciding, that the lengthy sentence here (which technically falls short of a life sentence) requires consideration of the factors the Supreme Court has identified as relevant when sentencing juveniles to life without parole. We also note that allowing eligibility for parole would encourage rehabilitation and facilitate prison discipline. Still, given the brutality of the offense, the sentence is affirmed.
• The Oneida Indian Nation once occupied over 6 million acres of land in an area that would later become New York State. The U.S. recognized 300k acres of that land as a reservation in the 1794 Treaty of Canandaigua. A series of treaties further selling and dividing the land followed, leading to an ownership dispute over a nearly 20-acre parcel between the Nation and a member of the Nation who has attempted to create a separate tribe on several occasions. The Second Circuit rules for the Nation, featuring a debate between the majority and concurrence over whether tribal sovereign immunity affects a federal court’s jurisdiction.
• After being denied Social Security disability benefits, two disappointed applicants take their cases to federal court. Yowzer! While their cases are pending, the Supreme Court decides that all of the Administrative Law Judges employed by the Securities Exchange Commission have been unconstitutionally appointed. Can the applicants raise the same argument against the ALJs at the Social Security Administration? Fourth Circuit: Indeed they can; no need to have raised it at the administrative level.
• Allegation: Unarmed, mentally ill man flees from Gretna, La. police, curls up into a fetal position. They pin him down, making it impossible to comply with their commands. They tase him repeatedly and strike him in face, back, scrotum, and testes as he pleads for his mother. He dies. Fifth Circuit: No qualified immunity for two officers who administered the beating, but several other officers who failed to intervene are off the hook.
• Following the release of secretly recorded videos showing abortion providers discussing making fetal tissue available to researchers, Texas deems several abortion providers “not qualified” to provide services, terminates them from participating in Medicaid. Overruling a 2017 panel decision, the en banc Fifth Circuit holds that people who received or sought services from the providers do not have standing to challenge the state’s determination that the providers are not qualified.
• Chicago man convicted of double murder receives a new trial, leading to his acquittal. He subsequently sues police and the city for fabricating evidence. After his first trial ends in a mistrial and his second ends with a verdict for $80k, he asks for and receives a third trial. The jury returns a verdict for $22 million. Seventh Circuit: Good for him. Dissent: There were no grounds for the third trial.
• Allegation: Seeking to question guest at Blaine, Wash. bed-and-breakfast, CBP agent enters the driveway, ignores the owner’s request that he leave, and then shoves the owner to the ground. (Turns out the guest is in the country legally.) When the owner complains to his superiors, the agent retaliates by, among other things, trying to get the IRS to investigate the owner. Ninth Circuit: It’s well-established that you can sue federal officers for excessive force. And, though there’s no precedent saying you can sue officers for retaliating as the agent did, there’s no reason not to allow that claim to proceed either. Case un-dismissed.
• Per court order, guards at Pelican Bay prison in California conduct welfare checks every half hour around the clock. Allegation: And create far more noise than necessary, depriving inmate of sleep at night. Ninth Circuit (over a dissent): It’s clearly established that sleep deprivation via constant illumination is unconstitutional, but there’s no precedent about excessive noise arising from compliance with court-ordered welfare checks. Nor do we establish it here.
• San Francisco police officer spies a car with no plates parked at a gas pump. Unable to approach the driver’s side, he walks up to the passenger’s side, opens the door, and leans in to talk to the driver. Upon discovering that the driver has a suspended license, the officer arrests the driver, and an inventory search of the car turns up a handgun. The driver is convicted of being a felon in possession. Ninth Circuit: But opening the door and leaning into the car violated the Fourth Amendment, so the evidence is excluded. And although we would normally consider this argument forfeited, having been raised only in a footnote before the trial court, the gov’t forfeited its forfeiture objection.
• And in en banc news, the Ninth Circuit will not revisit its earlier conclusion that a California resident—who is now the husband of a U.S. citizen—can seek to overturn a 1998 deportation order on the ground that the conviction on which it was based (involving facts that occurred in 1988, when the gentleman was 14 years old) was expunged over twenty years ago. Twelve judges dissent from denial, arguing that the decision gives rise to an 8-1 circuit split and is contrary to the unambiguous text of the statute.

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We are about to enter the ninth month of our COVID world. In many regards, time feels like it is standing still. Every day has a monotony like the one before. Yet, these past nine months have been a time of radical growth and transformation in ways that we really do not appreciate. Things that I thought were really important turned out to be unimportant. Things that I thought were impossible turned out to be quite easy. And things I thought I could never do have become old habit.

Perhaps my most profound lesson during this entire time is to never doubt the human capacity to evolve to meet new challenges. And I think this lesson has extended to higher education. At the outset of the pandemic, I was quite pessimistic about the ability of universities in general, and law schools in general, to cope with the pandemic. This skepticism was borne of my observations over the past decade: legal academia is a conservative (lowercase c) institution that evolves at a glacial pace. I did not think administrations and professors could move with enough agility to adapt to constantly-changing circumstances. I looked to elite institutions like Harvard Law School, which shut down entirely, as the canary in the kale mine: if HLS thinks it is too dangerous to stay open, how will less-prestigious schools stay open. And I also expected state and local governments to impose new draconian lockdown measures to shut down campuses.

I was wrong. Some universities preemptively shut down. In hindsight, those decisions may have been too rash. Other universities tried to open up, but failed miserably, and had to shut down. But the bulk of institutions opened up successfully, and stayed open throughout the semester.

Here, I can speak from personal experience. The South Texas College of Law Houston made it through the entire semester without any outbreaks. In a short period of time, we built several new classrooms to promote social distancing. We established elaborate protocols to ensure safety. And 1Ls were able to take the bulk of their classes in a “hybrid” model. We had very, very few positive cases, and almost all of them were off campus. I did not see any evidence of community spread in the building.  I commend my Dean, administration, colleagues, staff, and students for creating an entire online university in the span of months. It is truly remarkable what was accomplished in such a short time. For the spring, we are offering a larger number of upper-level classes on campus. And I suspect colleagues at other schools can tell similar success stories. There are also some colleagues who have some not-so-successful stories.

Moreover, the online model of learning became surprisingly normal–and effective. I have not yet graded exams, but my general sense is that students have roughly the same level of comprehension as in a normal semester. I feared there would be a huge disparity in retention, but that has not proven true. I also worried that there would be a serious burnout towards the end of the semester. I think concerns about “Zoom fatigue” are a bit exaggerated. Every year, I discern a drop in participation as the end of the semester nears. The late-term decline this year was no greater than usual. I resist the urge to blame the normal ebbs and flows of eduction on Zoom. The normal limitations of students exist, whether online or in person. Online education is not a perfect, or even a good substitute for in-person learning. But it has proven to be a far more effective substitute than I expected.

Yet, I recognize that online education has other costs. This year, I met with each of my students to review their midterms (over Zoom, of course). I would hold office hours on Saturdays and Sundays for much of October and November. In total, I spent about 20-30 minutes with each of my 100+ students. I found this time very effective, as it allowed me to forge a personal connection with a virtual student. I asked each student the same question: How is online education treating you? Consistently, students felt the lack of human connection. Chatting with classmates before class. Hanging out in the student lounge. Walking with a professor back to his office after class. These are interactions that Zoom can never, ever replace. Many students–especially those who lived alone–felt isolated and alone. (Students with families expressed the exact opposite problem, and worried that they could never get alone time!)

Eventually, law schools will be able to resume classes without social distancing requirements. A lecture hall that was built for 90 students will once again be able to seat 90 students. Will everything suddenly go back to “normal”? For many students, the answer is “YES!” Some of our students would be happy to never log onto Zoom ever again. Good luck with that. I think the legal practice will be forever transformed. Client meetings and court hearings will stay on Zoom, even after the pandemic passes.

For other students, however, the answer is not so clear. Part-time students, as well as commuter students, could benefit from having at least part of their education structured in a hybrid model. For example, I have some students that work from 9-5, then drive an hour downtown in rush hour, to begin four hours of class sessions. Other full-time students can have a 2+ hour commute each way. Perhaps, these students would be given the option to attend class in person two days a week, and attend hybrid classes two days a week.

I don’t see any reason to simply abandon all of the hard work done to improve hybrid education, given that there would be a serious demand. Students who want in-person learning only would get it. And students who want hybrid learning, and are willing to sacrifice the in-person interaction, would get it as well.

At the end of the spring 2020 semester (the infernal semester that would never end), I was pessimistic about the fall 2020 semester. But at the end of the fall 2020 semester, I am cautiously, and guardedly optimistic about the spring 2021 semester.

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My Psychedelic Love Story. Showtime. Sunday, November 29, 9 p.m.

“In order to use your head, you have to go out of your mind,” LSD guru Timothy Leary once told a reporter. It’s an aphorism that Joanna Harcourt-Smith, one of his many girlfriends, took to heart. After a whirlwind and drug-addled romance with Leary, she spent nearly four years trying to get him out of prison, lying and whoring and snitching and plotting murders and stinging his followers with fake drug deals in the process. Her reward was to get unceremoniously dumped almost immediately after he was released.

My Psychedelic Love Story is Harcourt-Smith’s nutty post-mortem torch song to Leary (he died in 1996, she last month) as well as a half-hearted attempt to settle some old feuds with her 1970s companions. It’s also a sign that that the celebrated documentarian Errol Morris, who adapted this documentary from a 2013 memoir by Harcourt-Smith, is as talented as ever—maybe more so—but also on the verge of becoming dangerously unhinged.

Morris is known for documentaries featuring penetrating investigations and incisive interviews. But his last one, Wormwood, an account of the death of a CIA germ warfare researcher who sailed out a window after being secretly dosed with LSD, was hugely speculative and dismayingly flighty. My Psychedelic Love Story wanders further and perhaps irretrievably down that path.

Only baby boomers—and perhaps few of them—are likely to recognize Harcourt-Smith, the documentary’s main subject. Hers was, for a brief interlude, a household name in the post-1960s counterculture as the handmaiden of Leary, a Harvard psychologist whose research into LSD turned him into a giddy Johnny Acidseed, spreading the good word about the drug while preaching his gospel of “turn on, tune in, drop out.” In 1972, she hooked up with him in Switzerland, where he was hiding out after escaping from a California prison with the aid of the Weather Underground and the Black Panthers.

Harcourt-Smith was barely aware of who Leary was when they first met. But the news that the FBI was after him titillated her (“I always wanted to be with an outlaw”), and she was certainly no stranger to drugs. Seeking political asylum for Leary (Switzerland had just warned him that he couldn’t stay there), they crisscrossed the continent for several weeks in a journey that, to hear Harcourt-Smith tell it, was right out of a Barbara Cartland novel: “We had traveled across Europe like shooting stars…plunging into the maddest romantic relationship you could ever imagine.” Well, maybe Cartland as translated by the editors at High Times. On the eight-hour drive from Switzerland to Austria alone, they imbibed a prodigious quantity of acid, snorted cocaine and smoked hash to “ballast the LSD,” then took Quaaludes washed down with aquavite for dessert.

Their journey ended in a truly hellish hangover. In Afghanistan, where they went because it had no extradition treaty with the United States, they were strong-armed onto a flight eventually ended back in California, where Leary was arrested for his escape from prison. Preposterously, he thought he’d be released on bail within a few days. He was surprised to learn that lots of judges consider prison escapees to be flight risks.

Facing more than three decades in possible prison sentences from old drug charges, Leary shocked his friends in the counterculture and the New Left by turning informer. Joanna, as she recounts with daft good cheer, enthusiastically joined in, wearing a wire for the Drug Enforcement Administration (DEA) to entrap Leary’s old friends and keeping his spirits up with detailed accounts of her profligate sex life outside the walls.

Even so, some of her most glorious exploits, disclosed previously to journalists, aren’t mentioned in My Psychedelic Love Story. She tried to seduce California Gov. Jerry Brown in hopes of winning Leary a pardon and nearly succeeded—at the seduction, not the pardon—and then did the same with U.S. Attorney General William Saxbe, with whom her wiles proved less alluring. Snapped Saxbe: “If I were your father, I’d spank you.”

This is a wildly entertaining, if often incoherent, tale. Even when she is idiotic, amoral, or nearly indecipherable—which is pretty often—Harcourt-Smith is a charming storyteller as she weaves the Leary story through a kaleidoscopic loop of Eurotrash adventures, from Gstaad and San Moritz to Paris and Hollywood, from arms traffickers to Anita van Pallenberg to the Rolling Stones to Francis Ford Coppola to George McGovern to Andy Warhol. Morris has enlivened her narrative by scattering it with throbbing day-glo colored graphics and old film clips— for instance, a scene of Sean Connery as James Bond, tied up as a laser ray advances toward his junk, inserted as Harcourt-Smith remembers a hostile interrogation by an arms-dealer boyfriend.

How much of her story is true is much harder to divine. Leary was a serial liar and fantasist—among other things he expected we would all be launched into space by the 1973 appearance of Comet Kahoutek—and Harcourt-Smith, as she chatters way for the cameras, boasts of many instances of doing the same. At times her muddled narrative departs from what she’s previously told of her life (though, admittedly, most of the major points are the same).

Even the avowed point of the film suggests what an unreliable narrator she is. In 1974, after it got out that Leary was spilling his guts to the DEA, his associates—who of course included hordes of dealers, not to mention political bandits like the Panthers and the Weathermen—were outraged. Many accused Harcourt-Smith of being some sort of Nixon administration Mata Hari who first led Leary into the hands of the cops, then seduced him into informing. There neither was nor is any evidence of that; Leary’s own letters and memoirs make it plain he was desperate to avoid spending the rest of the century in San Quentin.

But when she saw the lurid CIA fantasies in his last film, Harcourt-Smith tells Morris, it occurred to her that maybe they were right: “It’s while watching Wormwood that I said to myself, maybe I was a CIA  plant….Was I being manipulated, and if I was being manipulated, how far back did it go?”

That the Nixon administration, obsessed with its war on drugs, considered Leary Public Enemy No. 1 is beyond dispute. Morris has even found a clip from the White House tapes released during Watergate in which somebody, as Nixon rants about drugs, interjects a curse about “this guy Leary.” Retorts Nixon: “I’ve got room in the prison.” But Nixon had armies of cops, including the FBI and the DEA, to pursue Leary, who in any event made his own capture almost inevitable by being such a boob. Once, traveling in Europe with a squad of Black Panther security escorts, Leary nearly missed the plane because he wandered off to look at cameras in the duty-free store.

So there was no need for a deep-cover legion of CIA zombies to infiltrate Harcourt-Smith’s teenage life and induce her to boinking arms dealers—the episode, by her own account, that triggered her crossing of Ellberg’s path. And neither she nor Morris come up with even the slightest hint of CIA involvement. What they do manage to do, with their tales of duplicity, self-aggrandizement, and trivial hedonism, is to verify Jerry Rubin’s verdict when the news of Leary’s squealing broke: “This is the end of the ’60s.”

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In October, New York imposed strict requirements on houses of worship in so-called “microclusters.”

• In “Red” zones, houses of worship were limited to the lesser of 25% of maximum capacity, or 10 people. In virtually every house of worship, the 10 person limit controlled.
• In “Orange” zones, houses of worship were limited to the lesser of 33% of maximum capacity, or 25 people. In virtually every house of worship, the 25 person limit controlled.
• In “Yellow” zones, houses of worship did not have a hard capacity cap. Rather, they were subject to a 50% occupancy limit.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court declared the 10- and 25-person caps unconstitutional with respect to the applicants. As things stand now, none of the applicants are in Red or Orange Zones. Some of the churches and synagogues are in Yellow zones.

I made an error in Part VI of my series. I wrote that the applicants would not be subject to any limitations. I was wrong. The houses of worship in yellow zones are still subject to the 50% maximum occupancy limit. And if New York City snaps to an Orange Zone, the houses of worship would become subject to the 33% maximum capacity cap. And, if any microclusters are placed in the Red Zone, the 25% cap would remain. The applicants did not challenge the percentage caps, and the Supreme Court had no occasion to rule on them.

Now, all houses of worship in yellow zones are subject to the 50% cap. Indeed, my understanding is that houses of worship in “white” zone–that is, are not subject to a microcluster rule–are also subject to the 50% cap.

The Supreme Court’s injunction will stretch until the disposition of the certiorari grant. At this point, the Second Circuit’s proceedings will have no impact on the state of affairs in New York.

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