Month: March 2023

Few things are bipartisan these days. If there’s a consensus on any issue, it usually comes with a general proclivity toward moral panic—which is to say the consensus has more to do with politics than policy.

For a recent example, we can look to an announcement made by President Joe Biden on Twitter yesterday about legislation in Washington, D.C., which would have enshrined some changes to the District’s criminal code. “I support D.C. Statehood and home-rule – but I don’t support some of the changes D.C. Council put forward over the Mayor’s objections – such as lowering penalties for carjackings,” he said. “If the Senate votes to overturn what D.C. Council did – I’ll sign it.”

That’s a strange message for a few reasons, the first being that it doesn’t make logical sense. It roughly translates to: “I support D.C. statehood and home rule, but because they did something I disfavor, I will act like a king, countermanding D.C.’s home rule.” The concept of a principle is rendered meaningless if only applied in times of convenience and expediency.

The other issue, perhaps more glaring, is that in rebuking the legislation, Biden showed that he fundamentally does not know what it says. It appears he may be moving to nullify the bill not because of what’s in the legislation itself—a yearslong effort to make D.C.’s criminal code clearer, something many states across the country have done—but because of what was in editorials and Twitter chatter about the bill. Much of that was plainly false. He is responding to a panic propelled in part by Mayor Muriel Bowser, a Democrat, who vetoed the legislation after it was passed in November of last year. The City Council overrode that veto in January, which then attracted the attention of Congress. Crime is a real issue, with real effects, and it should be taken seriously. Biden’s announcement demonstrates that he has not grappled seriously with this issue.

That his administration is more acquainted with the punditry around the bill as opposed to the actual bill is evident in the example he used: carjacking penalties. The D.C. revision would “make it easier for carjackers to escape any kind of punishment,” writes John Feehery in The Hill, a publication with millions of readers. Feehery’s line is a good encapsulation of the alarming rhetoric that has come to characterize the discussion, which has seen special outsized attention paid to the bill’s carjacking provisions. The blogger Matthew Yglesias, who boasts more than half a million followers on Twitter, has zeroed in on that portion, as did The Washington Post.

The problem is that Feehery’s assertion is, quite literally, fake news. The bill does lower carjacking penalties—from a 40-year maximum to a 24-year maximum. It divides the crime into three levels of severity, prescribing up to 18 years’ imprisonment for offenders who acted without a weapon, and up to 24 years’ imprisonment if the defendant was armed (including with a fake gun). The idea that that qualifies as “escap[ing] any kind of punishment” would maybe be funny if it weren’t an apt example of how incredibly muddied this conversation has become. Policy lives and dies, ideally, by objective measures—the text of a bill, for example. But this policy debate has turned into a culture war debate, which entitles people to make things up as they go along, including in major media outlets.

Crime denialism is a popular trend among some these days. You won’t find that here. Carjacking is up in D.C., and it’s a problem. This bill wouldn’t have greenlit its continued rise. D.C.’s criminal code revision is “a carefully calibrated plan, grounded in empirical evidence and data, to make sure sentences are proportionate to culpability,” says Rachel Barkow, a law professor at New York University who clerked for former U.S. Supreme Court Justice Antonin Scalia, in an email to Reason. “Is there really a would-be carjacker out there who thinks, ‘I’ll only spend two and a half decades [in prison] if I do this – let’s roll.’ Of course not.”

Important to this debate is that the 40-year maximum for carjacking was not something judges actually imposed anyway. But even under D.C.’s new code, an alleged carjacker could still receive a punishment that greatly exceeds 24 years. “If a carjacker harmed someone or killed them, then there would be an assault or a homicide charge, and you’d have longer sentences anyhow,” adds Barkow. In other words, residents can take comfort in the fact that a carjacker who attacks or kills a victim would still be subject to punishments for those crimes too. Murder is already illegal, and it should and will stay that way.

Most of the criticism around the bill appears to be grounded in questions not about its content but about its timing. Lost on many is that this process began in 2006 and is something that many states—red, blue, and purple—have engaged in over the years. D.C.’s criminal code has not been updated comprehensively since its 1901 inception, leaving it with arcane rules that make it harder for prosecutors to prosecute. (Also lost on many is that D.C. prosecutors, as well as the federal government, collaborated with lawmakers in crafting the new bill.) The aging D.C. code gives the government a very nebulous roadmap for addressing offenses that are specific in nature, thus making it difficult for prosecutors to secure convictions. Ironically, carjacking is a good example here—without gradations for punishment based on the aggravation of the offense, prosecutors in some sense had to wing it. Fixing that should not be scandalous.

Although the reaction to the carjacking provision provides a good microcosm for this debate, it’s not the only portion that drew an ire that doesn’t comport with reality. The bill “would also expand the right to a jury trial for those charged with misdemeanors but facing jail time,” wrote Mayor Bowser. She meant that as a bad thing, which is, on its own, an amazing admission. The bedrock of this country, as envisioned by the Founders, was the right to a trial by jury. Ensuring everyone has access to that constitutional right, and is not punished for using it, is something that, in theory, would unite people. And yet, it is controversial.

The conversation here is, in many ways, bizarre. That doesn’t make it surprising. “This is consistent with [Biden’s] overall record on criminal justice reform since taking office, which has been abysmal,” adds Barkow. “He hasn’t supported any significant legislative reforms, his clemency record is an embarrassment”—she mentions the marijuana pardons, which freed a total of zero people from prison—”and his DOJ is opposing sensible compassionate release policies before the Sentencing Commission.”

Prior to running for the presidency, Biden had a reputation as a tough-on-crime warrior, with his infamous 1994 crime bill that destroyed many lives. “He didn’t just go along with these trends in the 1980s and 1990s—he was the ringleader,” Barkow says. “And that statement about the carjacking provision shows that, in many ways, he still is.”

The post Biden Embraces the Fearmongering, Vows To Squash D.C.'s Mild Criminal Justice Reforms appeared first on Reason.com.

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Did President Joe Biden laugh about “a poor mother who lost two kids to fentanyl”? No, he did not. But the context of his controversial remarks reveals bipartisan complicity in the prohibitionist policies that lead to senseless deaths like these.

On Tuesday, the Republican-controlled House Committee on Homeland Security held a hearing that was framed as an indictment of the Biden administration’s border policies. One of the witnesses was Rebecca Kiessling, a Rochester Hills, Michigan, lawyer whose sons Caleb, 20, and Kyler, 18, died in July 2020 after swallowing counterfeit Percocet pills that contained fentanyl. Although that hazard was created by the war on drugs, Kiessling blames the government for failing to wage that war aggressively enough.

“Law enforcement made it clear to me that this fentanyl came from Mexico,” Kiessling said during her tearful, heartbreaking testimony. “I didn’t know that my boys were taking anything that could kill them. They didn’t think that they were either. They thought that they were safe with pills.”

Kiessling urged the government to “do something” about the influx of illicit fentanyl. “If we had Chinese troops lining up along our southern border with weapons aimed at our people, with weapons of mass destruction aimed at our cities, you damn well know you would do something about it,” she said. “We have a weather balloon from China going across the country. Nobody died, and everybody’s freaking out about it. But 100,000 die every year, and nothing’s being done. Not enough is being done….This is a war. Act like it.”

Although Kiessling said “this should not be politicized,” that is exactly what the Republicans who control the committee were doing, and she lent support to their efforts. “You talk about welcoming those crossing our border, seeking protection,” she said. “You’re welcoming drug dealers across our border. You’re giving them protection. You’re not protecting our children.”

After the hearing, Rep. Marjorie Taylor Greene (R–Ga.) took that implied criticism of the Biden administration a step further. “Listen to this mother, who lost two children to fentanyl poisoning, tell the truth about both of her son’s [sic] murders because of the Biden administrations [sic] refusal to secure our border and stop the Cartel’s [sic] from murdering Americans everyday by Chinese fentanyl,” Greene wrote on Twitter.

Since Caleb and Kyler Kiessling died six months before Biden took office, of course, it is logically impossible that his border policies had anything to do with their deaths. That’s the point Biden was making when he addressed a meeting of House Democrats in Baltimore on Wednesday night.

Greene “was very specific recently, saying that a mom, a poor mother who lost two kids to fentanyl, that I killed her sons,” Biden said. “Well, the interesting thing: That fentanyl they took came during the last administration.” Then he laughed.

Biden’s laughter offended Kiessling. “This is how you speak about the death of my sons?” she said in a Facebook video. “Because a congresswoman misspoke? You mock the loss of my sons? How dare you? What is the matter with you? Almost every Democrat on the committee offered condolences. They at least had the decency to do that. You can’t even do that? You have to mock my pain?”

In context, it is clear that Biden, who described Kiessling as “a poor mother who lost two kids to fentanyl,” was not mocking her pain or the loss of her sons. He was very clearly mocking Greene. His lighthearted demeanor nevertheless was insensitive and tone-deaf, as Sen. Mike Lee (R–Utah) pointed out on Twitter.

“@POTUS needs to apologize for this immediately,” Lee tweeted. “No person, let alone the president of the United States, laughs when speaking about a mother who lost two sons to fentanyl poisoning.”

Other Republicans went further. Jake Schneider, director of rapid response for the Republican National Committee, called Biden “a disgusting person,” adding, “Losing children to fentanyl trafficking is never, ever funny. Just vile.” Schneider averred that “Biden’s laugh at fentanyl deaths for cheap political points exposes the real Joe.”

While Lee’s take seems about right to me, Schneider himself was trying to score “cheap political points” by hyperbolically claiming that Biden’s insensitivity reveals him as “a disgusting person” who “laugh[s] at fentanyl deaths.” House Republicans likewise were trying to score “cheap political points” by deploying Kiessling’s ordeal as a weapon in their assault on Biden’s border policies, which plainly cannot explain the dramatic increase in opioid-related deaths that began more than two decades ago and accelerated during the Trump administration.

This partisan nonsense conceals the reality that Democrats and Republicans share responsibility for policies that have contributed to that trend by making drug use more dangerous. That starts with bipartisan support for prohibition, which creates a black market where the quality and potency of drugs are highly variable and unpredictable. Prohibition also pushes traffickers toward more-potent substances, which are easier to smuggle. Enforcement of prohibition makes drug use riskier still by encouraging substitution of relatively safe products with more hazardous alternatives.

The “opioid crisis” illustrates all three of those phenomena. The crackdown on pain pills replaced legally manufactured, reliably dosed pharmaceuticals with iffy black-market products of unknown provenance and composition. Meanwhile, prohibition fostered the rise of fentanyl as a heroin booster and substitute. Because fentanyl is a synthetic drug that does not require conspicuous crops, it is easier to produce without attracting attention. It is also much cheaper and much more potent, which makes shipments smaller and easier to conceal. The rise of fentanyl made illegal drugs even more of a crap shoot.

In light of all this, it is not surprising that the government’s ham-handed efforts to reduce opioid-related deaths backfired. As Kiessling noted in her testimony, “numbers are going up, not down.” Worse, the upward trend in drug-related deaths accelerated after the government succeeded in reducing opioid prescriptions, which predictably drove nonmedical users toward black-market substitutes that were much more likely to kill them. The anti-opioid campaign hurt bona fide patients while simultaneously increasing the fentanyl death toll.

Now fentanyl is showing up not only in heroin but also in cocaine, methamphetamine, and ersatz pain pills like the ones that Kiessling’s sons took. “My children got fake Percocets that were fentanyl,” she said. “There was no Percocet in it at all.” Although “they thought that they were safe with pills,” they were wrong, because those pills did not contain what they expected. That sort of thing does not happen in a legal market. While Kiessling attributes her sons’ deaths to inadequate enforcement of prohibition, it was prohibition that killed them.

Because politicians will never admit their complicity in drug-related deaths, they instead call for more of the same. In his first State of the Union address, Biden promised to “beat the opioid epidemic” by “stop[ping] the flow of illicit drugs” and “working with state and local law enforcement to go after the traffickers.” But as always, that was a vain promise, because prohibition plants the seeds of its own defeat.

Prohibition enables traffickers to earn a premium for undertaking the special risks involved in supplying an illegal product. That means they are highly motivated to find ways around whatever roadblocks the government throws up between them and their customers. Given all the places where drugs can be produced and all the ways they can be transported to people who want them, the idea that the government could “stop the flow” if only it made a more determined effort is a fantasy.

As critics of prohibition often point out, the government cannot keep drugs out of correctional facilities, so even turning the entire country into a prison camp would not do the trick. The most that drug warriors can hope to accomplish is to impose costs on traffickers that are high enough to raise retail prices, thereby discouraging consumption.

The basic problem with that strategy, as drug policy scholars such as University of Maryland criminologist Peter Reuter have been pointing out for years, is that illegal drugs acquire most of their value close to the consumer. The cost of replacing destroyed crops and seized shipments is therefore relatively small, a tiny fraction of the “street value” trumpeted by law enforcement agencies. As you get closer to the retail level, the replacement cost rises, but the amount that can be seized at one time falls. That dilemma helps explain why throwing more money at source control and interdiction never seems to have a substantial, lasting effect on drug consumption.

Fentanyl compounds these challenges. Because it is much more potent than heroin, a package weighing less than an ounce can replace one that weighs a couple of pounds. These packages are readily concealed and hard to detect, whether they are sent through the mail or carried over the border.

Focusing on the latter route, Republicans say the problem is that Biden is letting too many people in—a charge that Kiessling echoed. But as Reason‘s Fiona Harrigan notes, fentanyl coming from Mexico typically is transported through ports of entry, and it is usually carried by U.S. citizens. “In order to smuggle fentanyl through a port of entry,” says Aaron Reichlin-Melnick, policy director at the American Immigration Council, “cartels hire primarily U.S. citizens, who are the least likely to attract heightened scrutiny when crossing into the United States.”

Reichlin-Melnick “analyzed every CBP press release and official Twitter post mentioning fentanyl seizures from December 2021 to May 2022,” Harrigan writes. “Only two involved people crossing between ports of entry, and of the 42 incidents where CBP mentioned a smuggler’s nationality, 33—or 79 percent—involved U.S. citizens.”

It is plainly impossible to “stop the flow of illicit drugs” across the border, and even substantially increasing the share of shipments that are seized would entail serious disruptions of trade and travel. Intercepting small packages of fentanyl in the mail is an equally daunting challenge.

Even if the U.S. “managed to stop 100 percent of direct [fentanyl] sales to the US, enterprising dealers [would] simply sell into nations such as the UK, repackage the product, and then resell it into the US,” Roger Bate noted in a 2018 American Enterprise Institute report. “Intercepting all packages from the UK and other EU nations to the US will not be possible.” And “whether or not drugs are available to the general public via the mail, drug dealers have domestic production and overland and sea routes and other courier services that deliver the product to the US.”

Kiessling is understandably frustrated by this situation. “You have to stop it from its source,” she told the House committee. But the U.S. government has been trying to do that for more than a century. It has always failed, and it always will, because the effort is doomed by the economics of black markets.

While politicians do not have the power to “stop the flow,” they can make matters worse by trying. The deaths of Kiessling’s sons are just the tip of that awful iceberg.

The post The Flap Over Biden's Comment About 2 Fentanyl Deaths Obscures Prohibition's Role in Causing Them appeared first on Reason.com.

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At the nation’s largest gathering of conservatives, many seem to be turning against the prospect of American military interventions—at least overseas.

As part of her speech at the 2023 Conservative Political Action Conference (CPAC), Rep. Marjorie Taylor Greene (R–Ga.) took aim at Ukrainian President Volodymyr Zelenskyy. According to Greene, “He said he wants our sons and daughters to go die [fighting] in Ukraine.” She pledged “no money to Ukraine” and said, “that country needs to find peace, not war.” To Zelenskyy, “You better leave your hands off our sons and daughters because they’re not dying over there.”

Greene made the same claim earlier this week on Twitter, based on an out-of-context statement: Speaking of a hypothetical Russian attack against a NATO member state, Zelenskyy said the U.S. would send its “sons and daughters” to fight. Ukraine is not a member of NATO. Under Article 5 of the North Atlantic Treaty, an attack on one member state could spawn a request for military assistance from other members. But after her speech, in an appearance at the Real America’s Voice broadcasting booth, Greene and Steve Bannon clarified that the U.S. should not acquiesce to American soldier involvement in conflict over NATO states either.

The forthrightness of Greene’s position marks a noticeable shift from conservatives of years past: After all, the only country to ever invoke Article 5 was the United States. Under a Republican president, the U.S. launched multiple wars against Middle Eastern nations under the rubric of a global war on terror after the September 11 attacks. But conservatives in the last few years have shifted away from the Republican Party’s past militarism, and it showed in the speeches of the party’s 2024 candidates.

Former South Carolina governor and U.S. ambassador to the United Nations Nikki Haley, who recently announced a run for the presidency, addressed CPAC on Friday. She refrained from any foreign policy specifics other than to say that “we need our military to be stronger than ever,” as “a strong military doesn’t start wars, a strong military prevents wars.”

Former Secretary of State Mike Pompeo was another CPAC speaker who is expected to announce a presidential run. Like Haley’s, Pompeo’s speech was short on foreign policy specifics other than to tout his own achievements as a West Point cadet and as an Army officer. He spoke of the need for military-style “victory” but against enemies like “wokeness” rather than any particular geopolitical foe.

Former President Donald Trump announced his own reelection candidacy in November. Last month, Politico reported that Trump intended to run as an anti-war alternative to candidates like Haley and Pompeo.

Given that the post-9/11 military incursions resulted in the two longest wars in American history, we should welcome conservative skepticism toward flexing America’s military might. But that’s not the entire story.

Republicans often blame Mexican drug cartels and American border policy for American fentanyl deaths. Greene advocated targeting cartels by bombing Mexico, a clear act of war against another nation. Vivek Ramaswamy, who recently announced a candidacy for president as a Republican, pledged that as president he would use “military force to decimate the cartels, Osama bin Laden-style.”

During a 2022 debate, Sen. J.D. Vance (R–Ohio) said the U.S. should “declare the Mexican drug cartels a terrorist organization,” a designation which he alleged “allows our military to go to Mexico…and actually do battle with them.”

And earlier this year, Reps. Dan Crenshaw (R–Texas) and Mike Waltz (R–Fla.) introduced an Authorization for Use of Military Force (AUMF) to target cartels. The U.S. Congress has yet to repeal the AUMFs still in effect since both 2001 and 2002—not to mention the AUMFs from 1991 and 1957—but some Republicans want to pass yet another one. While Waltz said this AUMF would not authorize soldiers, the 21st century is full of presidents using AUMFs in ways other than for their intended purpose.

While a conservative skepticism toward military aggression would be welcome, Republican standard-bearers are all too happy to sign off on war powers in other ways.

The post Conservatives Turn Further Against War—Except Maybe With Mexico appeared first on Reason.com.

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What does it mean to be a conservative wireless network? Or a conservative dating app? What about a cookie company that makes Donald Trump–themed gingerbread men? As mainstream cooperations have embraced progressive political positions in recent years, some conservatives are responding by providing a politicized consumer experience of their own.

“People are seeing a shift in corporate America having a lot of influence on politics,” said Chrissi Bretz, the director of outreach at Public Sq., a database of conservative-oriented businesses. “We’re seeing large corporations spending money on agendas.”

In interviews with Reason, right-wing business owners at the Conservative Political Action Conference (CPAC) consistently framed their companies as reactions to mainstream corporations—and mainstream culture—which they characterized as hostile to conservative interests.

“Right now, there’s a lot of parts of the country, especially on mainstream dating apps, where we feel like it’s a hostile environment for us. We want our own place where it’s easy to connect, where we know everyone there is kind of like us,” said John McEntee, co-founder of The Right Stuff, a conservative dating app. “The left dominates culture and industry…. So you could say, ‘Well, what’s the left-wing dating app?’ Well, it’s Tinder.”

“You shop your values,” said Magda Khalifa, founder of Triangle Fragrance, a perfume company. “And if we just keep giving money to brands that do not represent our values—faith, family, freedom, all the things that have made America great—well, our country is going to evolve.”

It seems that, for any service, there is an explicitly right-wing alternative that is gaining popularity among strident conservatives. Instead of Google, conservatives can use Tusk, a “Freedom-First” web browser and search engine. Truth Social famously appeared in 2021 as a refuge for conservative commentators who had been deplatformed by Twitter moderators. Patriot Mobile, a “Christian conservative” wireless provider, was founded a decade ago—but one company representative told Reason that their customer base has tripled since 2020.

“People really are considering purchasing with a purpose over convenience,” said Bretz. “They really want to spend their money in accordance with their values.”

Some pushed back against the idea that their businesses appeal only to committed conservatives. “Most of my customers know that I’m a Trump fan, but they come in anyway because they love the cookies,” said Beth Veneto, who owns Ginger Betty’s, a bakery that crafts elaborate Trump-themed cookies and gingerbread men. “And I have conversations with them. We can agree to disagree.”

While they may seem niche—even bizarre—these conservative businesses are meeting the demands of our increasingly polarizing political climate. If Republicans and Democrats are less likely than ever to live in the same communities, go to the same colleges, or consider dating each other, then it seems inevitable that should want to shop at different stories and use different internet platforms. Polarization, as it turns out, can be highly profitable.

“The country is that divided,” said McEntee. “We kind of want to be with our own people. We want to stick together. We want to help each other. And that’s what I think all these businesses are trying to do.”

The post Inside the Weird World of Niche Conservative Businesses 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.

Friends, come join us at Georgetown Law this Tuesday, March 7, for a symposium on Shielded: How the Police Became Untouchable, a timely new book by Joanna Schwartz. Click here for the details and to RSVP.

• In 1972, Congress proposed the Equal Rights Amendment and sent it to the states with a seven-year deadline for ratification, later extended to 10 years. Only 35 of the required 38 states ratified the amendment before the deadline, and several passed votes purporting to withdraw their ratification. Fast forward to 2018, when Nevada, Illinois, and Virginia became the 36th, 37th, and 38th states to ratify the supposedly defunct amendment and then file a mandamus action seeking to compel the national Archivist to record the amendment as part of the Constitution. D.C. Circuit: Mandamus is only to be used when the right to relief is “clear and indisputable,” which, it’s fair to say, ain’t the case here.
• Garner’s Modern American Usage shows no mercy to federal judges who confuse “flaunt” with “flout.” A mouth-breathing “Stage 3” error, says Garner! Which doubtless is why the First Circuit wasted no time issuing this sua sponte blockbuster errata clarifying that a district court’s discovery orders were in fact “flaunted.” Wait, no. “Flouted.” “Flaunted”? “Flounted.” Definitely flounted.
• Plaintiff: New York law forbids employers from taking adverse action against employees who procure abortions, but we are crisis pregnancy centers. Taking adverse action against abortion is kind of our whole thing. Second Circuit: And you may well have a First Amendment right to only employ people who agree with that. Case undismissed!
• What should you do when the police confiscate your handmade sign warning motorists of a nearby “traffic-enforcement operation”? Make another sign, of course! It’ll absolutely get you arrested, but it’ll also make you a starring character in an opinion like this one from the Second Circuit.
• Two dudes go walking down the sidewalk of a Richmond, Va. housing complex. Cops see them, recognize them, and accuse them of trespassing based partly upon a trespassing arrest from eight years ago. Cops ask the dudes to lift their shirts. One does, one kind of does. The kind-of one is also wearing skinny jeans, and there was a sketchy tip he sold drugs. Officers threaten him with trespassing charges and then detain and pat him down, finding a gun. Permissible Terry stop? District court: That’s totally fine. Fourth Circuit (over a dissent): A sketchy tip, eight-year-old arrest, and skinny jeans? Grant the motion to suppress.
• Allegation: Inmate at Rush City, Minn. correctional facility is attacked with a shank when he declines to pay off his cellmate’s drug debt. He (and his family) repeatedly ask for a transfer to another facility, but officials decline (in part because the assailant attests “the issue [is] dead.”) The assailant attacks again the first chance he gets, causing serious injuries. Eighth Circuit: Prison sucks, man. What do you want us to do about it?
• Driver of utility-terrain vehicle declines to stop for Bureau of Land Management officer in Berdoo Canyon, Calif., passing within arm’s reach of the officer. The officer fires his weapon, striking the passenger in the hand and grazing her head. Excessive force? District court: No qualified immunity. Ninth Circuit: Vacated with instructions to dismiss with prejudice. The Supreme Court has never said you can bring a Fourth Amendment claim against a BLM officer—a narcotics officer, sure, but they have a totally different mandate. [IJ filed an amicus brief urging a rather different course of action.]
• During the George Floyd protests in the summer of 2020, Seattle police withdrew from the Capitol Hill neighborhood and turned it over to the Capitol Hill Occupied Protest (CHOP). Notwithstanding the mayor’s characterization of the events as a “summer of love,” 19-year-old Horace Lorenzo Anderson, Jr. was shot, paramedics staged only a block and a half away couldn’t get to him, and he died. His mother sued the city arguing that its actions violated her substantive due process right to the companionship of her adult son. Ninth Circuit: We’re the only circuit that actually recognizes this right, and the city was deeply irresponsible, but the risks it created weren’t particularized to your son, so case dismissed. Concurrence: Bah! We should go en banc to un-recognize this “right” to not have your adult kids killed by state-created dangers.
• Abortion demonstrators operating a “sidewalk ministry” sue the city of Norman, Okla. alleging that the city’s disturbing-the-piece ordinance violates the First Amendment both facially and as applied. Sure, they lost at trial, but guess what happened when they appealed and (inexplicably for litigants represented by pro bono counsel) waived oral argument. Tenth Circuit: They lost again.
• In 2014, New Mexico State Police agents carrying out an arrest warrant in their “battle dress uniforms” (dark clothes, tactical gear) confront woman who is not their suspect and who believes she is being carjacked. She drives away, and the agents shoot 15 times, hitting her once in the back. Excessive force? Tenth Circuit: (2019): You can’t raise Fourth Amendment claims unless you were “seized.” And because you got away, you weren’t. SCOTUS (2021): Vacated. Shooting someone is a “seizure,” even if they get away. District court (2021): But these agents get qualified immunity because that hadn’t been clearly established. Tenth Circuit (2023): Ah, but they couldn’t have known she’d escape when they shot her. Remanded to determine if the agents behaved reasonably. [IJ filed an amicus brief urging this course of action.]
• Man, a felon, suspects his wife has overdosed, calls 911, and ambulance takes her to the hospital where she dies. Kingman, Kans. police then prohibit him from entering his house for several hours while they search. Find meth and guns. He’s prosecuted, but on appeal the evidence is suppressed because there wasn’t probable cause. He then sues for Fourth Amendment violations and malicious prosecution. District court: You waited too long to sue, and you can’t sue for malicious prosecution you weren’t found not guilty. Man: But the clock should have stopped while I was being prosecuted! And the Supreme Court just said all I need is the prosecution to end without a conviction! Tenth Circuit: Sorry, you should have sued even while you were fighting a long-running criminal prosecution. And good point on the new SCOTUS case, but your pleading was bad.
• Finally, courtesy of the Tenth Circuit, an admin-law decision with some real fireworks in it.
• Allegations: Douglas County, Ga. pretrial detainee who has severe injuries from an earlier car accident, and who also suffers from heart and kidney issues and seizures, suffers further severe injuries when left unmonitored and deprived of his crutches in a holding cell and again when forced to crawl, shackled, in an out of a bus that could not accommodate his wheelchair. Eleventh Circuit (unpublished): Jail sucks, man. What do you want us to do about it? Dissent: Completely agree, but it does seem like the jailer should have guessed that the guy in the wheelchair had some mobility issues and that crawling while shackled might exacerbate them. So the whole bus thing should go to a jury.
• In the early months of the Covid pandemic, the Alabama State Board of Pharmacy dedicated itself to the important work of investigating and bringing an enforcement action against an Auburn, Ala. pharmacist for allegedly administering Covid tests improperly. Pharmacist sues: HHS issued a federal declaration upon the outbreak of the pandemic providing “liability immunity for activities related to medical countermeasures against COVID-19.” District court: Younger abstention. Eleventh Circuit: Younger abstention! If the pharmacist wants a federal court to consider her federal-preemption theory, all she has to do is defend against the board’s enforcement action at the administrative level, appeal through every level of the Alabama state-court system, and get the U.S. Supreme Court to grant cert.
• And in en banc news, the Fifth Circuit will not reconsider its denial of qualified immunity to an Arlington, Tex. officer who jumped into the backseat of a car (over the repeated objections of a fellow officer) and first choked and then shot and killed a motorist who had declined to exit the vehicle for several minutes. (The stop was precipitated by the motorist’s 2-year-old tossing part of plastic candy cane out of the vehicle.)
• And in amicus brief news, IJ is asking the First Circuit to reverse a grant of qualified immunity to Gloucester, Mass. school officials who threatened to charge a parent with wiretapping—which requires a secret recording—after he openly recorded them in a public place and posted the recording to Facebook. The district court found there was no previous case on point. But, in fact, every official throughout the land has had more than adequate warning that threatening legal action under a facially inapplicable statute in retaliation for someone’s protected speech does indeed violate the First Amendment.
• Friends, last week’s edition contained a deeply painful error. The blame lies with your editor, whose fondness for the eponymous sarsaparilla of Sioux City, Iowa, which is not the same place as Sioux Falls, S.D., resulted in an unfortunate and surprising switcheroo. Still, we feels the proffreader’s should have caught that one.

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