Month: July 2022

From today’s article in the Washington Post (Peter Jamison) (reprinted, without a paywall, in the Philadelphia Tribune), documenting a trend that I generally very much favor:

Like many Black women in [the D.C. area] …, [Patrice Parker had] viewed guns for most of her life as the root of the violence that had wrecked countless lives in her community.

That changed, paradoxically, after her son was shot to death in a parking lot not far from her home. Exasperated with the police response and in despair over the sheer number of weapons on the streets, Parker decided there was only one way to protect what remained of her family. And that was to pick up a gun herself.

“I always felt like you needed to take the guns off the street. But the way things are now …. I don’t feel safe anymore,” she said. “You can’t trust nobody.”

Across America, Black women are taking up arms in unprecedented numbers…. Scarred—sometimes literally—by the firsthand consequences of gun violence and disenchanted with decades of urban gun-control policies that they regard as largely ineffective, some Black women in D.C. and other cities are embracing a view long espoused by Second Amendment activists: that only guns will make them safer….

As a child growing up in Southeast Washington during that era, Keeon Johnson learned to fear the weapons that routinely ended the lives of her neighbors.

“I wasn’t into guns at all,” Johnson said, “because we were told that guns were bad.”

Decades later, serving as the Democratic chairwoman of an Advisory Neighborhood Commission in Ward 8, Johnson began to wonder whether her faith in her party’s repeated promises of stricter gun control was misplaced…. [Eventually, s]he and her husband, Frenchie Johnson, … became NRA-certified instructors last year. Now they teach classes, catering specifically to Black people from D.C. and Prince George’s, out of their home in White Plains, Md….

One of their first students was Janae Hammett, 37, who had gone to elementary school with Johnson in D.C. and whose children’s father was shot to death in 2010. Given that history, Hammett said she was initially “on eggshells” around guns. But her comfort level increased the more she shot, and eventually she joined Johnson in forming the Second Amendment Sista Society, a club for Black women in the Washington region who are interested in guns.

Hammett said her transformation was driven, fundamentally, by desperation. Illegal guns, it seemed, were everywhere. If she couldn’t count on anyone else to protect her, why shouldn’t she legally own a gun to protect herself?

“I don’t think the government, police or anybody will ever get a hold of the illegal guns,” she said….

As a woman in a dangerous place, she had always feared she would be unable to defend her family. Her son’s killers were still out there. But with a gun, Parker felt less vulnerable, especially with the knowledge she had gained at the Choppa Community [a local gun range].

“They took the fear out of me,” she said.

Parker was waiting for the paperwork to come through on her concealed-carry license, and in the meantime she was trying to share her revelation with others….

The article cites two experts who argue that gun possession undermines safety rather than promoting it, but none who argues the contrary (and there certainly are prominent criminologists, such as Gary Kleck, who have indeed argued that gun possession generally tends to make the possessor safer). But in any case, I thought it was noteworthy that the article documented this thread, and took a generally positive tone on it.

The post "Black Women Who Once Hated Guns Are Embracing Them as Crime Soars" appeared first on Reason.com.

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In a career that has spanned seven decades—and included classic shows and movies such as Monty Python’s Flying Circus, Fawlty Towers, Life of Brian, and A Fish Called Wanda—the comedian John Cleese has uproariously and relentlessly satirized politics and religion while stretching the boundaries of decorum and good taste like so many silly walks.

Now 82, Cleese—who studied law at Cambridge—has recently set his sights on political correctness and wokeism, which he says are the enemy not only of humor but of creative thinking in all areas of human activity.

I caught up with him at FreedomFest, the annual July gathering of libertarians in Las Vegas. Cleese was the keynote speaker, there to discuss creativity, which was the subject of his 2020 book of the same title. It’s a quick and excellent read, summarizing a wide range of psychological research on the topic and drawing from his own experiences.

It’s a myth “that creativity is something you have to be born with,” he argues. “Anyone can be creative.” He also contends that “you can teach creativity,” writing, “you can teach people how to create circumstances in which they will become creative.”

After giving a talk on the attitudes and habits of mind he believes are necessary for creativity to 2,500 attendees at FreedomFest, I interviewed Cleese from the main stage about the importance of freedom of thought and expression when it comes to being creative, why wokeism is the enemy of that, and why creativity is so important to progress and civilization.

The post John Cleese: Wokeism Is the Enemy of Comedy—and Creativity appeared first on Reason.com.

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A new law signed by Iowa Gov. Kim Reynolds limiting local governments’ power to regulate home businesses is letting her neighbors open a home-based gun dealership without the need for a city permit.

This past Wednesday, the Des Moines Register reports, the Des Moines Zoning Board of Adjustment was supposed to hold a public hearing to vet an application from homeowners Travis and Elizabeth Aslin to set up a home-based business that would sell firearms online and allow for on-site pickups.

The Aslins’ plan for their home-based business—which would be located just across the street from the Iowa governor’s mansion—set off a storm of controversy from the neighbors, who argued it could lead to an increase in crime and reduction in property values.

“There is a potential for weapons that can be purchased and fired from this property to have a range of nearly 2000 [feet]—this affect hundreds of houses, businesses, daycares, domestic violence shelters, a school, and the governor’s mansion,” reads the petition, which was signed some 170 people.

This kind of organized public opposition is often enough to sink conditional use applications. But not in this case.

The day before the Zoning Board of Adjustment was supposed to hold its public hearing on the Aslins permit, the board abruptly took it off the agenda.

Erik Lundy, a city zoning enforcement officer, issued a letter explaining that the Aslins’ proposed firearm selling business qualified as a “no-impact home-based business” under the new home-based business bill signed into law by Reynolds in June.

Travis Aslin also told Axios that his business was more of a hobby and that he’s sold only two guns in the last five years from his previous home.

The new law prohibits local governments from banning no-impact businesses, provided they don’t generate off-street parking and the business activity takes place inside the house and can’t be viewed by the neighbors. The law also prevents local governments from requiring no-impact home businesses to obtain permits, licenses, or other permissions.

Lundy said the state law prevented the city from requiring the Aslins to get a permit. His letter notes that Travis Aslin’s firearm business is already regulated by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, which can conduct yearly unannounced inspections.

Lundy’s letter means the couple can now go ahead with their business. Some of the neighborhood opponents told the Des Moines Register they were planning on appealing the zoning board’s decision and will take it all the way to the local district court if necessary.

The typical conditional use permit controversy normally goes the other way: The property owner is forced to file endless appeals trying to convince the neighbors and city officials that they should be allowed to do what they want with their property.

Iowa’s new protections for home-based businesses have turned that dynamic on its head. It’s now local NIMBYs that have to spin their wheels and spend their money, arguing a new home-based business will be a detriment to the neighborhood that should be stopped.

Fortunately, Iowa’s new home-based business law forces local authorities to focus on the actual impacts of businesses on their neighbors. That pushes local government regulation toward its proper role of combating legitimate nuisances, while otherwise leaving people free to use their property as they see fit.

And if that means a gun dealer can set up shop next to the governor’s house, all the better.

The post In Iowa, You No Longer Need a Permit To Sell Guns Across the Road from the Governor's Mansion appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Atlanta criminal defense attorney Andrew Fleischman joins the panel to talk absolute prosecutorial immunity and why the Fulton County DA’s hotly anticipated prosecution of Donald Trump would almost certainly be removed to federal court (where a jury pool would have slightly different leanings than one from Atlanta). Big spoiler: It’s because of the War of 1812.

• After a jury convicts Libyan man on four counts for his role in 2012 Benghazi terrorist attack (acquitting on another 14 counts), the district court sentences him to 22 years—despite sentencing guidelines that suggest life plus 10 years. D.C. Circuit: It’s okay that the judge didn’t sentence him based on the conduct he was acquitted of, but even setting that aside the downward departure from the guidelines is unreasonable. Judge Millett, concurring: It’s still kind of crazy we add years to people’s sentences for conduct they were acquitted of.
• Before a federal agency issues a rule, it must go through the lengthy notice and comment process. And if an agency wants to repeal a rule it must do the same thing. But what if just before a new president takes office, an agency says it’s issuing a final rule that will become final in a few weeks, and the new administration repeals the rule before that time comes (as apparently happened in 2017, 2009, 2001, and 1993—to name just a few). Should the agency have gone through notice and comment before repealing? The majority of a D.C. Circuit panel says yes and characterizes the gov’t’s argument to the contrary to be that such a rule “exists in a state of superposition like Schrödinger’s cat—simultaneously law and not law until the agency publishes or withdraws it.”
• Another week, another federal circuit opinion—this time from the D.C. Circuit—affirming the FDA’s decision to deny pre-market approval to thousands of vaping products.
• Man out front of the Bronx County Hall of Justice—with a sign that reads “Jury Info” and pamphlets that say “Google Jury Nullification”—is arrested under a statute prohibiting disseminating information within 200 feet of a courthouse “concerning the conduct of a trial being held in such courthouse.” After being released, he sues under the First Amendment, winning an injunction in district court. Second Circuit: Well, first of all, the guy has standing. I mean, he was arrested. And the statute’s definitely bad as applied to what he was doing and others doing similar stuff. But it probably isn’t unconstitutional as a facial matter. Injunction vacated and case remanded. Partial dissent: The statute’s so bad it’s facially overbroad in a couple of different ways.
• Groups managing nursing homes and assisted living facilities throughout the Northeast clash with unions representing employees at the facilities. Unions allege that the facilities engaged in a slew of unfair labor practices, such as improperly terminating employees and suppressing union communications. The facilities allege that the unions vandalized the facilities, brought on an HHS audit, and engaged in other extortionate behavior amounting to a RICO violation. District court: It’s never RICO. Third Circuit: It actually might be here.
• Wise County, Va. prison guards and inmate get into a physical altercation following a dispute over an empty peanut-butter jar. Inmate promptly and repeatedly seeks videos of the encounter. Zoinks! Some of the videos weren’t preserved. Spoliation? District court: Don’t worry about it. The videos that exist supports the officers’ testimony. Fourth Circuit: We’re worried about it.
• Following a trial on whether Virginia Beach’s system of at-large voting districts violated the Voting Rights Act—but before judgment—the Virginia Assembly outlawed the system. Fourth Circuit: So the case is moot. But since you’ve done most of the work you would do to challenge the new system, we’ll remand and the trial court can decide whether you can amend your complaint. Dissent: The new law didn’t fix everything, so the case is not moot.
• For over two months and without a warrant, DHS agents constantly surveil the front and back of Houston home by means of cameras placed on poles outside. A Fourth Amendment violation? The Fifth Circuit says no; anyone strolling by could take in the same view. No need to suppress the evidence; defendant’s 18-year sentence for his part in a marijuana-growing operation is affirmed, as is the forfeiture of his home, boat, weapons, and $7.2 mil. (N.B.: For an opposing view, might we recommend this IJ amicus brief?)
• Sabine County, Tex. deputy sheriff conducting welfare check allegedly makes a series of sexually charged comments and sexually assaults woman. She files a complaint (at least the fourth filed against him) for sexual misconduct with the Texas Rangers, he’s indicted, and she sues. District court: No constitutional violation here. Sheriff: Qualified immunity. Fifth Circuit: Both of you are very, very wrong.
• “1-1-1!” No, that isn’t an emergency number or a Herman Cain campaign promise. It’s the breakdown of this Fifth Circuit case brought by disabled students who wanted to enjoin the Texas Attorney General’s order forbidding schools from issuing mask mandates. One judge has a lot to say about how masks didn’t give the plaintiffs standing, one judge dissents, and one judge oddly only concurs on the facts and the redressability prong of standing.
• Guards at a Louisiana private prison empty a can of pepper spray on a prisoner and repeatedly drop him on his head before taking him to the “Four-Way,” the one corner of the prison that cameras don’t reach, for two hours. The man later dies of a skull fracture. District court: No one’s liable for nothin’. Fifth Circuit (over dissent): We review the facts in the plaintiffs’ favor. The officers used excessive force and they worked in concert to cause the injuries that killed this man. Also, both the city and corporation knew about these cruel practices, and they did nothing to stop it, so those claims survive too.
• District court: It’s obvious that jail officers shouldn’t throw scalding water on detainees, and here are some prior cases (about chaining a prisoner to a post and choking a restrained detainee unconscious and leaving him to die) that clearly establish the law on that. Sixth Circuit (unpublished): And since there’s no video or anything that shows otherwise, we have to treat the detainee’s allegations as fact. No qualified immunity for this Grayson County, Ky, jail officer.
• Plaintiffs: Columbus, Ohio’s Historic Preservation Code lets a small band of private citizens dictate what we do with our own property in arbitrary ways. Sixth Circuit: Actually, Columbus’s Historic Preservation Code lets a duly-appointed commission (which may—may!—even include lawyers or bankers) issue totally cool commands that you jerkwads should have just obeyed.
• When Peninsula Township, Mich. wineries challenge local ordinances that restrict wine sales and prohibit hosting weddings, among other things, a local NIMBY group seeks to intervene in the lawsuit. The district court tosses their motion and rules that the ordinances are either unconstitutional or preempted by state law. Sixth Circuit: Not so fast. Even though the township strenuously fought the lawsuit, the NIMBYs’ interests (property values, quiet enjoyment of their homes, viability of their farms) are different from the township’s (preserving the public fisc). Let them in.
• Can Loyola Chicago undergrad students get a refund on tuition because they were deprived “of in-person instruction and access to on-campus facilities” while COVID-19 had shut everything down? Seventh Circuit: Some of their breach of contract claims are cognizable under Illinois law and may proceed.
• In 2021, the feds put a stop to what had been a regular July 4th fireworks display at Mt. Rushmore, denying South Dakota officials’ request for a permit due to COVID-19, wildfire risks, and tribal opposition, among other things. (And in 2022, the feds deny the permit again.) Was the denial arbitrary and capricious? We’d need a time machine to let you do the fireworks now, says the Eighth Circuit, and who’s to say whether the permit will be denied in 2023 and why? This case is moot.
• St. Louis man guffaws at rally by then-presidential candidate Donald Trump, leading Trump to command the crowd to “Get him out of here!” He’s arrested and charged with disturbing the peace but acquitted at trial. The man then sues the police for arresting him without probable cause. Eighth Circuit: Even if they didn’t have actual probable cause, they did have arguable probable cause, and that’s enough to give everyone involved qualified immunity.
• Allegation: 7-year-old with bruises and abrasions tells school that her father beat her with a belt. When Des Moines, Iowa detectives come to her home with a social worker, her mother declines to let them in or bring her out. After six minutes of arguing, the mother is arrested for “interference with official acts.” Eighth Circuit: The officers could either go get a warrant or look for an exigent circumstance to enter the home without one, but what they couldn’t do was arrest her. Her “passive failure to cooperate” did not even create arguable probable cause that she was interfering with an official act. No qualified immunity.
• The Eighth Circuit‘s said it before, and it’s sayin’ it again: The St. Louis officers who rounded up scores of allegedly peaceful protestors using a kettling technique are not entitled to qualified immunity for seizing the protestors. But since the plaintiffs did not adequately allege excessive force, QI will preclude those claims. Dissent: The complaint here is almost identical to the last case, where we said no QI for excessive force. So the conclusion should be the same here.
• Allegation: Property owner overhears Honolulu building inspector say that he’s causing costly delays to renovation project because the owner hired non-Hawaiian contractors. Unconstitutional interference with his right to make contracts? Could be, says the Ninth Circuit. Even if the delays were justifiable, the right to be free from racial animus in public decisions is clearly established. No qualified immunity. (N.B.: Interested readers might note that the suit proceeds under Section 1981, and that at least 10 other circuits say that Section 1981 provides no private right of action for damages against state actors.)
• Washington law prohibits displaying a weapon in a manner that “warrants alarm for the safety of other persons.” So did police have probable cause to arrest a Yakima County man after receiving reports that the man displayed a firearm? Ninth Circuit: Not in an open-carry state like Washington. The officers should have confirmed whether he displayed the weapon threateningly or alarmingly. All evidence found after the arrest (including an IED in the man’s car) are suppressed.
• Are Twitter or Facebook pages maintained by public officials public fora under the First Amendment? The Ninth Circuit weighs in on this fast-growing doctrinal area (the answer is “sometimes”) but fails to acknowledge the really thorny question: the brewing circuit split over whether they’re “public fora” or “public forums.”
• Allegation: Man convicted of sex offense at retrial is sentenced to a minimum of 10 years, which he has already served. Which means that under Washington state law, he’s to receive a parole hearing within 120 days. But parole board members blow that deadline by nine months. (The hearing ultimately results in his release.) Negligence? False imprisonment? Ninth Circuit: Can’t say. Parole board members are quasi-judges and thus protected by absolute immunity.
• Allegation: Man forgets to remove belt, sets off Jackson Hole, Wyo. airport body scanner. TSA agents refuse to let him take off the belt and go through again, insisting instead on a groin pat, which the man equally insists he does not consent to. He’s arrested by local police, one of whom says that his stay in jail (which ultimately lasted three hours) is being prolonged because he keeps asking for a lawyer. Tenth Circuit: Drawing all factual inferences in favor of the plaintiff, as we must at this stage of the case, the gov’t says that’s not why his stay was prolonged. Case dismissed. And furthermore, his claims against the municipality (which he pursued without amending to the district court’s satisfaction) are so meritless that $55k sanctions against him and his attorneys are merited. (IJ filed an amicus brief arguing the sanctions aren’t merited.)
• Moreover, holds the Tenth Circuit (same case as above), there is no prior case clearly establishing that an officer wrenching a handcuffed person’s wrist, injuring it, without provocation and in retaliation for their speech, would “chill a person of ordinary firmness” from continuing to engage in protected speech. (Nor is there such a case now.)
• In response to a shooting spree that injured several children, Ocala, Fla. police chief—along with volunteer police chaplains—help to organize and sponsor a prayer vigil in the town square. Humanists and atheists attend the vigil and then sue, alleging Establishment Clause violations. Eleventh Circuit: And they have standing. But while this case was on appeal the Supreme Court killed the Lemon test that previously governed, so we’ll send this back down for reconsideration.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” Anyway, apropos of nothing, we really can’t recommend this longform article on abusive code enforcement by Radley Balko in the Nashville Scene enough. Nashville is bad. Memphis is bad. Lots of other places are bad. It is bad to eat out people’s substance.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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In the weeks after the release of The Dark Knight Rises, which was dominating the American box office 10 years ago this month, director Christopher Nolan steadfastly denied that he’d embedded a political perspective in the final film of his massively successful Batman trilogy.

“What we’re really trying to do is show the cracks of society, show the conflicts that somebody would try to wedge open,” he told Rolling Stone in a response to a question about whether the film’s villain, Bane, leading an uprising against Gotham City’s 1 percent was explicitly mirroring (and criticizing) the then-relevant Occupy Wall Street movement. “We’re going to get wildly different interpretations of what the film is supporting and not supporting, but it’s not doing any of those things. It’s just telling a story.”

That story, however, is undeniably imbued with political symbolism. Nolan’s final Batman film builds on themes that were central to both Batman Begins and The Dark Knight—the blurry line between heroic individualism and chaotic vigilantism and questions about the nature of justice—but the movie’s fulcrum is a parable about the dark places that populism can lead.

Or, rather, where it can be led. “If the populist movement is manipulated by somebody who is evil, that surely is a criticism of the evil person,” Nolan said in that same Rolling Stone interview, tipping his hand ever so slightly. “That has happened to other societies throughout history, many times, so why not here? Why not Gotham?”

Indeed, The Dark Knight Rises is not a narrowly drawn critique of the Occupy movement but is better understood as a full-blown critique of populism in general—and, more accurately, of the ways that populist movements are cynically used by leaders who seek power for themselves rather than as genuine expressions of the will of the people. In that regard, the movie is perhaps even more relevant now than when it was released.

It’s no accident, surely, that Bane’s revolution begins with a fiery speech encouraging the people of Gotham to storm a prison. Nor that the revolution soon devolves into show trials and public executions. The French Revolution, perhaps the ultimate historical example of populism gone awry, is a recurring motif throughout the film—near the end, Police Commissioner Jim Gordon eulogizes Batman by quoting from A Tale of Two Cities, just in case you hadn’t already gotten the point.

At first blush, that parallel might lend a sort of old-school conservative ethos to the movie. “What passes for a right-wing movie these days is The Dark Knight Rises, which submits the rather modest premise that, irritating though the rich may be, actually killing them and taking all their stuff might be excessive,” quipped New York magazine’s Jonathan Chait in his review of the movie.

But it’s overly simplistic to view The Dark Knight Rises as a warning about the chaos that could descend if the institutions running society—the prisons, the political leaders, the police—are torn down.

After all, Nolan spent the first two films in the franchise highlighting various ways in which the institutions at the center of Gotham’s society are nearly hopelessly corrupt. Bruce Wayne is initially motivated to take on the cowl and cape in Batman Begins in order to confront a criminal mob that’s untouchable by law enforcement. That corruption is personified in the fall of reform-minded District Attorney Harvey Dent in The Dark Knight. Those with the power to make a difference are either gone (like Wayne’s parents) or indifferent, Rachel Dawes explains to Bruce in the first film. Gotham, we are repeatedly told by various characters throughout the trilogy, is beyond saving.

At the same time, we’re shown that the people of Gotham are fundamentally good. The most memorable example: When given the chance by the Joker to blow up a ferry full of convicted criminals in order to save themselves from the same fate, a group of random Gotham civilians refuses to do so.

To read The Dark Knight Rises as a conservative warning about the importance of institutions and the dangers of mobs would require throwing out much of the moral framework that Nolan built into the trilogy. Something more subtle is afoot.

In fact, it’s the institutional corruption that invites Bane’s and Talia al-Ghul’s plot to destroy the city in the third film. That the villains have chosen a populist uprising as the form of Gotham’s destruction is a cruel joke perpetrated on both Batman (who insists on the fundamental virtue of the people, despite the mob violence) and the people of the city themselves, who only believe they’re seizing power but will actually be obliterated. “As I terrorize Gotham, I will feed its people hope to poison their souls,” Bane explains at one point.

To put it all together, then, the movie is a warning about populism and about the ways in which corrupt, failing institutions invite populist takeovers that are little more than cover for authoritarians. In the end, it’s not the police, the banks, or the military that can be trusted to stand against such a threat. It’s actually just people, motivated to do what’s right even without a governmental structure around them. It’s not just Batman who thwarts Bane’s and al-Ghul’s plot; it’s an entire resistance movement that slowly rises from within Gotham (notably, this happens without Batman’s help, as he is detained elsewhere for much of the movie’s second act).

“He may not be a hero of the Randian variety, but Bruce Wayne’s willingness to sacrifice for the good of others is a cinematic depiction of the best that free humans are capable of,” Reason‘s Stephanie Slade wrote for U.S. News & World Report shortly after the film was released a decade ago. “His heroics underscore one of the foundational precepts of the libertarian movement. It doesn’t take big government to make the world a better place—it takes people choosing to do the right thing.”

Of course, having a flying Batmobile never hurts.

In the 10 years since The Dark Knight Rises hit theaters, Batman has already been rebooted on the big screen twice—as a brooding, warped loner with a vendetta against Superman and as a…brooding, warped loner with a vendetta against criminals. With his wealth, cool gadgets, and penchant for vigilantism, Bruce Wayne is always going to be something of a reactionary figure, and the newer films have (as Nolan’s did, though to a lesser degree) questioned whether Batman should be seen as a hero or problematic billionaire with a mental disorder.

But Nolan’s version of the caped crusader has staying power that other iterations of the character lack, in no small part because of how his Batman films grappled with questions about what makes society work—and what could make it fail.

In the first two movies, Batman’s foes fail in their efforts to use fear and chaos to destroy Gotham. In the third, they try politics—and for a while, it succeeds.

The post <em>The Dark Knight Rises</em> Was a Cautionary Tale About Populism appeared first on Reason.com.

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