Food Trucks Still Being Squeezed Out by Local Governments


foodtruck_1161x653

Last week, Detroit’s city council introduced new rules that will allow food trucks to operate in more parts of the city beginning next spring.

“From an equity standpoint and from a food access standpoint, we believe food trucks should be able to operate in public spaces across the city,” city councilor Raquel Castañeda-Lopez, who introduced the measure, told the Detroit Free Press. I agree.

Some advocates for downtown Detroit appear quite vaguely pleased.

“Not being against an ordinance but important to have the clarity to what can and cannot take place in the city street but supporting fairness and harmony,” Eric Larson, CEO of the Downtown Detroit Partnership, told the Detroit Free Press. “We have to continue to find ways to support all of the small businesses equitably.”

While words such as “fairness and harmony” and “equitably” make for a nice word salad, they mask the true, protectionist spirit underlying the new ordinance.

“Food trucks must be 200 feet away from existing restaurants and 300 feet from entertainment and sports arena areas,” the Freep report indicates, also noting that food trucks may no longer operate after 11 p.m. That’s progress?

Maybe to Larson, whose nebulous, we kinda sorta like it remarks aren’t a huge surprise, given that Downtown Detroit Partnership’s member list includes a host of giant companies and traditional food-truck opponents—including brick-and-mortar restaurateurs and the realty groups that rent space to them.

Indeed, in discussions of expanding food truck access to other parts of Detroit—or any city or town in America—the devil’s in the details.

Just a couple days after the city council vote, American Coney Island, a brick-and-mortar hot dog joint in Detroit that’s operated since 1917, tweeted out its displeasure at having to compete, for the time being, with a “fleet of unexpected food trucks parked along our street.” Owner Grace Keros, Deadline Detroit reported, “was particularly concerned about the trucks that sell hot dogs. She said her neighbor Lafayette Coney Island was also upset.” Lafayette Coney Island and American Coney Island, brick-and-mortar neighbors for more than 100 years, each sell hot dogs. (Read that sentence again.)

A host of withering comments greeted American Coney’s tweet, noting the hot dog restaurant doesn’t own the street, and that competition and “CHOICE” are, you know, good things.

Those commenters get it. Radius restrictions have always been about illegally protecting brick-and-mortar restaurants from competition. Nothing else.

Detroit’s hardly alone. City councilors in Beatrice, Neb., south of Lincoln, are mulling how to regulate food trucks that operate in the city. Though at least one councilor lauded food trucks as “a bright spot in the community,” the Lincoln Journal Star reported this week, the council appears set on making sure those bright spots don’t park anywhere near a brick-and-mortar restaurant in the city.

“The ordinance would prevent mobile food vending within 50 feet of a food establishment, though Councilor Rick Clabaugh recommended changing that to 100 feet,” the Journal Star report noted.

50 feet isn’t enough? Why not 100 feet? Why not 300 feet? Or a mile? Or in some other city?

Nearly a year ago, I discussed the case of a brick-and-mortar restaurant owner who wanted her town, Seymour, Ind., to restrict food trucks because, she said, her restaurant “can’t compete with Chick-fil-A,” the national restaurant chain, which occasionally parked a food truck in town.

“What is the point of having them in downtown Seymour when we have restaurants here that are trying to grow and strive to make downtown better?” Brewskies owner Lori Keithley asked at the time.

“The point?” I wondered? “Well, it’s competition and choice. But some who can’t or won’t compete throw up their hands and ask the government to limit choice by stifling competition. That’s protectionism.”

“We’d love food trucks,” critics seem to be saying, “if they’d just park away far, far away from any potential customers.”

While the pandemic has decimated the restaurant industry, I noted last year, “rather than making life easier for brick-and-mortar restaurants—say, by lifting barriers to entry or by making it easier and less costly for restaurants to operate—many cities and towns have decided instead to make life harder for food trucks.”

Food trucks are a welcome addition to any city or neighborhood. They’re also—as recent examples in Bridgeport, Dearborn, and Centerville (outside Dayton) remind us—a great way for entrepreneurs to test out concepts that can grow into one or more brick-and-mortar restaurants. While consumers would be foolish to leave food trucks alone—so many of them serve really great food—lawmakers and regulators should just leave them be.

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Food Trucks Still Being Squeezed Out by Local Governments


foodtruck_1161x653

Last week, Detroit’s city council introduced new rules that will allow food trucks to operate in more parts of the city beginning next spring.

“From an equity standpoint and from a food access standpoint, we believe food trucks should be able to operate in public spaces across the city,” city councilor Raquel Castañeda-Lopez, who introduced the measure, told the Detroit Free Press. I agree.

Some advocates for downtown Detroit appear quite vaguely pleased.

“Not being against an ordinance but important to have the clarity to what can and cannot take place in the city street but supporting fairness and harmony,” Eric Larson, CEO of the Downtown Detroit Partnership, told the Detroit Free Press. “We have to continue to find ways to support all of the small businesses equitably.”

While words such as “fairness and harmony” and “equitably” make for a nice word salad, they mask the true, protectionist spirit underlying the new ordinance.

“Food trucks must be 200 feet away from existing restaurants and 300 feet from entertainment and sports arena areas,” the Freep report indicates, also noting that food trucks may no longer operate after 11 p.m. That’s progress?

Maybe to Larson, whose nebulous, we kinda sorta like it remarks aren’t a huge surprise, given that Downtown Detroit Partnership’s member list includes a host of giant companies and traditional food-truck opponents—including brick-and-mortar restaurateurs and the realty groups that rent space to them.

Indeed, in discussions of expanding food truck access to other parts of Detroit—or any city or town in America—the devil’s in the details.

Just a couple days after the city council vote, American Coney Island, a brick-and-mortar hot dog joint in Detroit that’s operated since 1917, tweeted out its displeasure at having to compete, for the time being, with a “fleet of unexpected food trucks parked along our street.” Owner Grace Keros, Deadline Detroit reported, “was particularly concerned about the trucks that sell hot dogs. She said her neighbor Lafayette Coney Island was also upset.” Lafayette Coney Island and American Coney Island, brick-and-mortar neighbors for more than 100 years, each sell hot dogs. (Read that sentence again.)

A host of withering comments greeted American Coney’s tweet, noting the hot dog restaurant doesn’t own the street, and that competition and “CHOICE” are, you know, good things.

Those commenters get it. Radius restrictions have always been about illegally protecting brick-and-mortar restaurants from competition. Nothing else.

Detroit’s hardly alone. City councilors in Beatrice, Neb., south of Lincoln, are mulling how to regulate food trucks that operate in the city. Though at least one councilor lauded food trucks as “a bright spot in the community,” the Lincoln Journal Star reported this week, the council appears set on making sure those bright spots don’t park anywhere near a brick-and-mortar restaurant in the city.

“The ordinance would prevent mobile food vending within 50 feet of a food establishment, though Councilor Rick Clabaugh recommended changing that to 100 feet,” the Journal Star report noted.

50 feet isn’t enough? Why not 100 feet? Why not 300 feet? Or a mile? Or in some other city?

Nearly a year ago, I discussed the case of a brick-and-mortar restaurant owner who wanted her town, Seymour, Ind., to restrict food trucks because, she said, her restaurant “can’t compete with Chick-fil-A,” the national restaurant chain, which occasionally parked a food truck in town.

“What is the point of having them in downtown Seymour when we have restaurants here that are trying to grow and strive to make downtown better?” Brewskies owner Lori Keithley asked at the time.

“The point?” I wondered? “Well, it’s competition and choice. But some who can’t or won’t compete throw up their hands and ask the government to limit choice by stifling competition. That’s protectionism.”

“We’d love food trucks,” critics seem to be saying, “if they’d just park away far, far away from any potential customers.”

While the pandemic has decimated the restaurant industry, I noted last year, “rather than making life easier for brick-and-mortar restaurants—say, by lifting barriers to entry or by making it easier and less costly for restaurants to operate—many cities and towns have decided instead to make life harder for food trucks.”

Food trucks are a welcome addition to any city or neighborhood. They’re also—as recent examples in Bridgeport, Dearborn, and Centerville (outside Dayton) remind us—a great way for entrepreneurs to test out concepts that can grow into one or more brick-and-mortar restaurants. While consumers would be foolish to leave food trucks alone—so many of them serve really great food—lawmakers and regulators should just leave them be.

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Today in Supreme Court History: November 27, 1964

11/27/1964: WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of the “Christian Crusade” series. This broadcast gave rise to Red Lion Broadcasting Co. v. Federal Communications Commission (1969).


The Warren Court (1969)

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Today in Supreme Court History: November 27, 1964

11/27/1964: WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of the “Christian Crusade” series. This broadcast gave rise to Red Lion Broadcasting Co. v. Federal Communications Commission (1969).


The Warren Court (1969)

The post Today in Supreme Court History: November 27, 1964 appeared first on Reason.com.

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Terrorwashing a Genocide


book2

In 2002, the United States sent 22 Uyghur men to Guantanamo Bay, where they joined more than 700 other detainees living beyond the comforts of the Geneva Convention. The men were Chinese citizens who U.S. intelligence believed had received weapons training in Afghanistan, and the U.S. military had advertised $5,000 a head for their capture on leaflets circulated among bounty hunters in Pakistan. After their camp in Afghanistan was bombed in the early days of the American invasion, 18 of the men spent months hiding in the caves of Tora Bora, hoping to return to China. When they finally made it across the border to Pakistan, their mountain guides lured them to a mosque, where they were turned over to U.S. forces and flown to Gitmo.

Years passed. After a series of tribunals in the mid-2000s, the military concluded that none of the detained men was an enemy combatant. None could be charged with a crime under U.S. law. Until their detention, none had even heard of Al Qaeda, the great enemy of America with whom their obscure militant group was meant to be closely allied. The prisoners “only have one enemy, and that’s the Chinese,” one of the detainees told a tribunal in 2004. “They have been torturing us and killing us all: old, young, men, women, little children, and unborn children.”

Something had clearly gone amiss. Yet the prospect of bringing the detainees into the U.S. was unthinkable to military and political leaders, even after a federal district court judge ordered some of the men released. Nor could they be shipped to China, to be forcibly disappeared inside an opaque prison system where political dissidents are routinely executed. (Although the exact figure is a state secret, China kills thousands of prisoners every year, several times the number of executions performed by the rest of the world combined.)

Small countries eventually stepped in to resolve what had become a very American paradox of habeas corpus. In 2006, Albania accepted five of the men. In 2009, four more—the youngest of whom, at 30, had been in prison since he was 23—found asylum in Bermuda. That same year, many of the remaining Uyghurs were temporarily resettled in the small Pacific island nation of Palau, although one man was rejected because he had developed a debilitating mental disorder at Guantanamo that Palauan hospitals were not equipped to treat. Finally, after more than a decade in detention, the last three detainees were accepted in 2013 by Slovakia.

At the time, critics saw the odyssey of Guantanamo’s Uyghur detainees as an indictment of the U.S. war on terror. In the light of more recent events, that same odyssey now reads like a fable of Uyghur life under a global war on terror—an early chapter in the story of an ethnic minority willfully misconstrued by powerful nation-states, their threat to imperial expansion obscenely exaggerated.

Both stories involve post-9/11 forms of cross-border policing as well as new ways of constructing fugitive populations on which to test them. The difference is that what was once an American obsession is now an international one. “Terrorism” has become the opportunistic cover for governments around the world looking to subdue any kind of non-state agitator: ethnic nationalists in Russia, pirates in Indonesia, environmentalists in the Philippines, Kurdish revolutionaries in Turkey. There is hardly a government anywhere that has not adopted some feature of the war on terror, from its ideological abstractions of good and evil to the special permissions it grants states to monitor and control citizens.

The evolution is nowhere so stark as in China’s Xinjiang Uyghur Autonomous Region, a frontier territory whose minority Uyghur population is almost certainly the most monitored and controlled on the planet. How did it happen that, at the dawn of the war on terror, the United States came to target 22 men from China who had never heard of Al Qaeda or committed any crime against the U.S. and who were not terrorists under any country’s definition of the term? How did it then come to pass that the ethnic identity these men shared became criminalized in a sparsely populated region of China, where 12 million Uyghur residents are now subject to mass incarceration, totalitarian surveillance, and forced sterilizations?

In The War on the Uyghurs, Sean Roberts begins the arduous task of probing these and other mysteries of the first two decades of the global war on terror. In doing so, he shows how the United States’ efforts to build an international consensus for its counterterrorism projects had far-reaching consequences on the other side of the world, changing the relationship between the Chinese state and its long-oppressed Uyghur minority. He also shows how, during that same period—apart from any Western influence—the Chinese government became increasingly brazen in its oppression of Muslim and Turkic minorities, steadily curtailing freedoms of movement, assembly, and speech in Xinjiang long before the moment in 2016 when it began secretly interning hundreds of thousands of people in extrajudicial “Transformation Through Education” centers.

The director of the International Development Studies program at George Washington University’s Elliott School of International Affairs, Roberts is also an anthropologist who began visiting the Uyghur homeland—many residents prefer the name East Turkestan over Xinjiang, a Qing-era colonial term that means “New Frontier”—in 1990. Drawing on decades of research, fieldwork, and media analysis, his book is an excellent introduction to the modern political history of the region. The War on the Uyghurs is comprehensive yet lucid, and the writing never feels stiff or academic. Although there are references to Agamben’s homo sacer and Foucault’s biopolitics, Roberts’ analysis is not explicitly theory-driven. At the same time, the history he presents is clearly informed by ideas about power and administration that emerged from efforts to understand the authoritarian governments of the previous century and the high-tech surveillance states of this one.

It is tempting to think of Xinjiang as a vast and arid Guantanamo Bay, one roughly as large as Alaska and as populous as Texas. Like Donald Rumsfeld’s own “world-class operation,” on a much grander (albeit largely domestic) scale, it is a hypertrophied state-within-a-state where minority residents are guilty before judgment and where the rule of law is reengineered in the name of fighting a pervasive, unbounded, and infinitely flexible terrorist threat. According to Darren Byler, another scholar of the region, China’s counterterrorism campaign in Xinjiang “rests on the assumption that most Uyghurs and significant numbers of Kazakhs are terrorists, separatists, and extremists-in-waiting.” But while Guantanamo Bay’s purpose is containment, Xin-jiang’s state of exception is intended to cure a diseased population. This philosophy is made explicit in government statements dating to the 2014 start of China’s “People’s War on Terror.” In the words of one 2015 report from Hotan City, anyone whose thinking has been “deeply affected” by “religious extremism” must be transformed through “military-style management.”

Roberts argues that this state of exception is facilitating cultural genocide. In addition to the system of extrajudicial detention that has incarcerated hundreds of thousands of people—possibly more than a million—in camps, more than 300,000 residents have also received formal prison sentences in the last three years, an order of magnitude more than in previous periods. An entire generation of Uyghur academics, artists, and businesspeople has disappeared, probably into prisons; they include internationally respected anthropologists, poets, comedians, novelists, and economists. There have been many credible reports of torture, sexual violence, and forced sterilization among Xinjiang’s minority population. Children are routinely taken from detained parents and placed in state orphanages where minority language and culture are demonized. And more than a million Communist Party cadres have been sent to live temporarily with Uyghur and Kazakh families, where they perform searches of homes, lecture their hosts on the dangers of Islam, and even sleep in the same beds as their “brothers” and “sisters.” Meanwhile, birth rates have plummeted in minority areas. The end result, scholars and activists fear, will be the eradication of Uyghurs as a distinct people.

Except for a comprehensive final chapter on events since 2017, The War on the Uyghurs is less about the contemporary threat of cultural genocide than it is about the years of buildup that preceded it. The book forms a kind of historical prologue to the stories from Xinjiang that we journalists tend to focus our attentions on. Such a prologue is especially valuable to general readers seeking an understanding of the region that goes beyond news stories, where, for reasons of space or lack of expertise, regional history is often thin. (Sometimes it is contained entirely within a single adjective, “restive.”)

Roberts spent six years as the United Nations special rapporteur on human rights and counterterrorism, and the question of what counts as “terrorism”—who gets to define it and how—animates the book more than any other. For Roberts, terrorism requires the deliberate targeting of civilians. While Xinjiang has seen no shortage of violence described by Chinese authorities as “terrorism” in recent decades, only a handful of incidents would qualify under his definition. On the contrary, he argues that the threat of terrorism presented by Uyghur jihadists was non-existent before 2013 and has remained minimal ever since.

It’s true that small numbers of Uyghurs have sometimes pushed for political independence in their homeland, even founding two short-lived Republics of East Turkestan in the years before China’s Communist revolution. But in case after case, Roberts shows, the Chinese government has used deceptive framing, official secrecy, and the framework of the war on terror to artificially inflate the danger of Uyghur separatism in order to justify increasingly ruthless policies in Xinjiang. “Often,” he writes, “what was framed as a ‘terrorist attack’ by authorities at this time was really armed self-defense against police and security forces, which were seeking to aggressively apprehend Uyghurs they viewed as ‘disloyal’ to the state, often merely determined by their religiosity.”

In one much-publicized case, an alleged series of attacks on security forces in 2011 was treated as organized terrorism sponsored from abroad; the Chinese government even went so far as to criticize Pakistan, a close ally, for harboring Uyghur terrorists. But the details grow strange under scrutiny. The attacks appear to have been inspired by a ban on veiling and the wearing of black clothing among Uyghur women. Of the 18 confirmed dead, 14 were the alleged attackers themselves, and—unusually for an attack of this scale—no group ever claimed responsibility. One Uyghur witness told The Wall Street Journal that “they say the people came from Pakistan; they say they were international terrorists, but that’s not true; they were local people angry with the government and with the Han Chinese.”

Roberts describes dozens of similar cases. He cites another 2011 “terrorist attack” that amounted to a shootout between police and a group of Uyghur men attempting to leave the country, and a 2012 raid of an “illegal religious gathering” that in reality may have been a normal prayer group the police interrupted before shooting four people dead. Far from any organized insurgency, the growing violence in the Uyghur homeland seems to have resulted from constant incursions by security forces into private and public Uyghur spaces; in one case officers conducting a household search lifted a woman’s veil against her will, prompting a violent response from the men in the household that left 16 Uyghurs dead, including six women.

The labeling of such incidents as acts of terror was no accident. With the start of the war on terror, a new field of foreign “terrorism experts” in the United States and Europe began to rely on Chinese state materials on Xinjiang as part of a global assessment of terrorist groups. These “experts” often took Chinese authorities at their word about the urgent risk posed by Uyghur separatism while ignoring regional experts who for the most part viewed any separatist risk as remote. Roberts singles out one notorious target of government anxieties—the East Turkestan Independence Movement, or ETIM—for special scrutiny. This happens to be the group to which the 22 Uyghur men detained at Guantanamo allegedly belonged.

In Roberts’ view, ETIM was a “phantom terrorist group.” Although a group commonly identified as ETIM did release propaganda videos in the early 2000s showing a dozen men training with rifles and guns, their members never called themselves by that name, and Roberts finds little evidence that the group existed in more than the barest sense of the word. ETIM and its members performed no confirmed acts of militancy inside China or anywhere else. The group never claimed responsibility for an act of violence. And it remains virtually unknown among Uyghurs in China, with “very little if any impact inside the Uyghur homeland.”

Yet in 2002, the U.S. and U.N. both declared ETIM a terrorist organization. Within two years its leader was dead and its members decimated. Since then, Chinese state media has denounced the phantom threat as the “black hand” behind almost all acts of violence in Xinjiang “for decades.”

With unprecedented detail, Roberts shows how ETIM’s image in the eyes of the international intelligence community went from a ragtag nonentity to a well-funded terrorist conspiracy. He provides suggestive evidence that the U.S., which initially dismissed China’s claims about ETIM as politically motivated, reversed its conclusions in order to secure China’s support on the U.N. Security Council in the weeks before the U.S. pleaded its case for the invasion of Iraq.

As late as December 2001, the U.S. State Department refused to accept China’s branding of Uyghur dissent as a “terrorist threat”; a U.S. representative suggested at the time that “the legitimate economic and social issues that confront people in Northwestern China” should be solved “politically rather than using counterterrorism methods.” By mid-2002, the story had changed. The U.S. was by then anxious to forestall any objections from China concerning its pre-emptive strikes in the Middle East. Western “experts” needed no further prompting to produce all the evidence required to treat ETIM as a significant threat to Chinese stability.

Some of these experts claimed that ETIM was underwritten by Al Qaeda, and this may have been the link that doomed them. Roberts finds no convincing evidence the connection was real. Indeed, the organization seems to have denounced 9/11 and rejected any connection to the Taliban or Al Qaeda. Even calling ETIM an “organization” appears to oversell its status, Roberts writes: “I would argue that the available information about [leader Häsän] Mäkhsum’s group suggests that it was not an organization at all, but a failed attempt to create a militant movement.”

The Uyghurs who ended up in Guantanamo Bay had indeed “trained” in an ETIM camp—in addition to morning jogs, there was one Kalashnikov, which they took turns shooting—but they did not appear to understand themselves as belonging to a particular militant group. Most had ended up in Afghanistan looking for a safe place to live after leaving Kyrgyzstan and Pakistan over fears they would be extradited. To be labeled a “terrorist” in the global war on terror, however, is to become a figure with no legitimate political grievances.

As the war on terror escalated outside of China, state-conjured threats of separatism led to harsher policies in Xin-jiang. Roberts argues that this environment created a “self-fulfilling prophecy” where state tactics made spontaneous acts of rage and violence—eventually including genuine acts of terrorism, such as a coordinated knife attack in Kunming in 2014—all but inevitable, retroactively justifying the policies that caused the violence in the first place. As with the insurgent subjects of European colonialism, the Uyghur “problem” may be best understood as an unwieldy state force in search of a subject upon which to exert itself.

With its rare abundance of Uyghur-language sources, The War on the Uyghurs pairs well with Eurasian Crossroads, James Millward’s brilliant longue durée history of Xinjiang. Elsewhere, Millward has said he is increasingly convinced that colonialism is a useful lens through which to understand Xinjiang since the late Qing era. Roberts, with his focus on more recent history, does not hesitate to describe Xin-jiang in settler-colonial terms, placing him in agreement with several other mainstream scholars of Central Asia, including Byler, Justin Jacobs, Dibyesh Anand, and Eric Schluessel. While often acknowledging the differences between Xinjiang and classical cases of European colonialism, these scholars have highlighted resource extraction, the Chinese state’s domination of local politics, and the conscious destruction, displacement, or assimilation of indigenous populations.

Some Chinese Communist Party mouthpieces have defended policies in Xinjiang by arguing that the United States—a powerful and belligerent critic of China’s domestic policies—has behaved with as much cruelty and force toward its own native populations. Roberts recalls a defensive message he received claiming that China’s policies were justified because “the US had done the same thing to Native Americans.” Yet it is precisely the similarities between the Uyghurs and other indigenous and native peoples that render their situation so acutely indefensible. Global norms have shifted in recent decades toward the recognition of indigenous rights, including the right to self-determination. China may not recognize the existence of indigenous people within its borders, but in 2007 the state voted in favor of the U.N. Declaration on the Rights of Indigenous People. The U.S., which initially voted against the declaration, later reversed its decision.

Such instruments are part of a rising awareness that the destruction of a people or their way of life is never justifiable, whether in the name of modernization and development or, in the case of Xinjiang, in the name of securitization. Roberts’ central argument is that the eradication of Uyghur life is facilitated less by any Chinese notion of manifest destiny than by the ideology of the war on terror and the infinite pliancy of a counterterrorism effort that justifies any policy and terrorwashes any law—including those once used to “civilize” the natives.

The War on the Uyghurs: China’s Internal Campaign Against a Muslim Minority, by Sean R. Roberts, Princeton University Press, 328 pages, $29.95

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Terrorwashing a Genocide


book2

In 2002, the United States sent 22 Uyghur men to Guantanamo Bay, where they joined more than 700 other detainees living beyond the comforts of the Geneva Convention. The men were Chinese citizens who U.S. intelligence believed had received weapons training in Afghanistan, and the U.S. military had advertised $5,000 a head for their capture on leaflets circulated among bounty hunters in Pakistan. After their camp in Afghanistan was bombed in the early days of the American invasion, 18 of the men spent months hiding in the caves of Tora Bora, hoping to return to China. When they finally made it across the border to Pakistan, their mountain guides lured them to a mosque, where they were turned over to U.S. forces and flown to Gitmo.

Years passed. After a series of tribunals in the mid-2000s, the military concluded that none of the detained men was an enemy combatant. None could be charged with a crime under U.S. law. Until their detention, none had even heard of Al Qaeda, the great enemy of America with whom their obscure militant group was meant to be closely allied. The prisoners “only have one enemy, and that’s the Chinese,” one of the detainees told a tribunal in 2004. “They have been torturing us and killing us all: old, young, men, women, little children, and unborn children.”

Something had clearly gone amiss. Yet the prospect of bringing the detainees into the U.S. was unthinkable to military and political leaders, even after a federal district court judge ordered some of the men released. Nor could they be shipped to China, to be forcibly disappeared inside an opaque prison system where political dissidents are routinely executed. (Although the exact figure is a state secret, China kills thousands of prisoners every year, several times the number of executions performed by the rest of the world combined.)

Small countries eventually stepped in to resolve what had become a very American paradox of habeas corpus. In 2006, Albania accepted five of the men. In 2009, four more—the youngest of whom, at 30, had been in prison since he was 23—found asylum in Bermuda. That same year, many of the remaining Uyghurs were temporarily resettled in the small Pacific island nation of Palau, although one man was rejected because he had developed a debilitating mental disorder at Guantanamo that Palauan hospitals were not equipped to treat. Finally, after more than a decade in detention, the last three detainees were accepted in 2013 by Slovakia.

At the time, critics saw the odyssey of Guantanamo’s Uyghur detainees as an indictment of the U.S. war on terror. In the light of more recent events, that same odyssey now reads like a fable of Uyghur life under a global war on terror—an early chapter in the story of an ethnic minority willfully misconstrued by powerful nation-states, their threat to imperial expansion obscenely exaggerated.

Both stories involve post-9/11 forms of cross-border policing as well as new ways of constructing fugitive populations on which to test them. The difference is that what was once an American obsession is now an international one. “Terrorism” has become the opportunistic cover for governments around the world looking to subdue any kind of non-state agitator: ethnic nationalists in Russia, pirates in Indonesia, environmentalists in the Philippines, Kurdish revolutionaries in Turkey. There is hardly a government anywhere that has not adopted some feature of the war on terror, from its ideological abstractions of good and evil to the special permissions it grants states to monitor and control citizens.

The evolution is nowhere so stark as in China’s Xinjiang Uyghur Autonomous Region, a frontier territory whose minority Uyghur population is almost certainly the most monitored and controlled on the planet. How did it happen that, at the dawn of the war on terror, the United States came to target 22 men from China who had never heard of Al Qaeda or committed any crime against the U.S. and who were not terrorists under any country’s definition of the term? How did it then come to pass that the ethnic identity these men shared became criminalized in a sparsely populated region of China, where 12 million Uyghur residents are now subject to mass incarceration, totalitarian surveillance, and forced sterilizations?

In The War on the Uyghurs, Sean Roberts begins the arduous task of probing these and other mysteries of the first two decades of the global war on terror. In doing so, he shows how the United States’ efforts to build an international consensus for its counterterrorism projects had far-reaching consequences on the other side of the world, changing the relationship between the Chinese state and its long-oppressed Uyghur minority. He also shows how, during that same period—apart from any Western influence—the Chinese government became increasingly brazen in its oppression of Muslim and Turkic minorities, steadily curtailing freedoms of movement, assembly, and speech in Xinjiang long before the moment in 2016 when it began secretly interning hundreds of thousands of people in extrajudicial “Transformation Through Education” centers.

The director of the International Development Studies program at George Washington University’s Elliott School of International Affairs, Roberts is also an anthropologist who began visiting the Uyghur homeland—many residents prefer the name East Turkestan over Xinjiang, a Qing-era colonial term that means “New Frontier”—in 1990. Drawing on decades of research, fieldwork, and media analysis, his book is an excellent introduction to the modern political history of the region. The War on the Uyghurs is comprehensive yet lucid, and the writing never feels stiff or academic. Although there are references to Agamben’s homo sacer and Foucault’s biopolitics, Roberts’ analysis is not explicitly theory-driven. At the same time, the history he presents is clearly informed by ideas about power and administration that emerged from efforts to understand the authoritarian governments of the previous century and the high-tech surveillance states of this one.

It is tempting to think of Xinjiang as a vast and arid Guantanamo Bay, one roughly as large as Alaska and as populous as Texas. Like Donald Rumsfeld’s own “world-class operation,” on a much grander (albeit largely domestic) scale, it is a hypertrophied state-within-a-state where minority residents are guilty before judgment and where the rule of law is reengineered in the name of fighting a pervasive, unbounded, and infinitely flexible terrorist threat. According to Darren Byler, another scholar of the region, China’s counterterrorism campaign in Xinjiang “rests on the assumption that most Uyghurs and significant numbers of Kazakhs are terrorists, separatists, and extremists-in-waiting.” But while Guantanamo Bay’s purpose is containment, Xin-jiang’s state of exception is intended to cure a diseased population. This philosophy is made explicit in government statements dating to the 2014 start of China’s “People’s War on Terror.” In the words of one 2015 report from Hotan City, anyone whose thinking has been “deeply affected” by “religious extremism” must be transformed through “military-style management.”

Roberts argues that this state of exception is facilitating cultural genocide. In addition to the system of extrajudicial detention that has incarcerated hundreds of thousands of people—possibly more than a million—in camps, more than 300,000 residents have also received formal prison sentences in the last three years, an order of magnitude more than in previous periods. An entire generation of Uyghur academics, artists, and businesspeople has disappeared, probably into prisons; they include internationally respected anthropologists, poets, comedians, novelists, and economists. There have been many credible reports of torture, sexual violence, and forced sterilization among Xinjiang’s minority population. Children are routinely taken from detained parents and placed in state orphanages where minority language and culture are demonized. And more than a million Communist Party cadres have been sent to live temporarily with Uyghur and Kazakh families, where they perform searches of homes, lecture their hosts on the dangers of Islam, and even sleep in the same beds as their “brothers” and “sisters.” Meanwhile, birth rates have plummeted in minority areas. The end result, scholars and activists fear, will be the eradication of Uyghurs as a distinct people.

Except for a comprehensive final chapter on events since 2017, The War on the Uyghurs is less about the contemporary threat of cultural genocide than it is about the years of buildup that preceded it. The book forms a kind of historical prologue to the stories from Xinjiang that we journalists tend to focus our attentions on. Such a prologue is especially valuable to general readers seeking an understanding of the region that goes beyond news stories, where, for reasons of space or lack of expertise, regional history is often thin. (Sometimes it is contained entirely within a single adjective, “restive.”)

Roberts spent six years as the United Nations special rapporteur on human rights and counterterrorism, and the question of what counts as “terrorism”—who gets to define it and how—animates the book more than any other. For Roberts, terrorism requires the deliberate targeting of civilians. While Xinjiang has seen no shortage of violence described by Chinese authorities as “terrorism” in recent decades, only a handful of incidents would qualify under his definition. On the contrary, he argues that the threat of terrorism presented by Uyghur jihadists was non-existent before 2013 and has remained minimal ever since.

It’s true that small numbers of Uyghurs have sometimes pushed for political independence in their homeland, even founding two short-lived Republics of East Turkestan in the years before China’s Communist revolution. But in case after case, Roberts shows, the Chinese government has used deceptive framing, official secrecy, and the framework of the war on terror to artificially inflate the danger of Uyghur separatism in order to justify increasingly ruthless policies in Xinjiang. “Often,” he writes, “what was framed as a ‘terrorist attack’ by authorities at this time was really armed self-defense against police and security forces, which were seeking to aggressively apprehend Uyghurs they viewed as ‘disloyal’ to the state, often merely determined by their religiosity.”

In one much-publicized case, an alleged series of attacks on security forces in 2011 was treated as organized terrorism sponsored from abroad; the Chinese government even went so far as to criticize Pakistan, a close ally, for harboring Uyghur terrorists. But the details grow strange under scrutiny. The attacks appear to have been inspired by a ban on veiling and the wearing of black clothing among Uyghur women. Of the 18 confirmed dead, 14 were the alleged attackers themselves, and—unusually for an attack of this scale—no group ever claimed responsibility. One Uyghur witness told The Wall Street Journal that “they say the people came from Pakistan; they say they were international terrorists, but that’s not true; they were local people angry with the government and with the Han Chinese.”

Roberts describes dozens of similar cases. He cites another 2011 “terrorist attack” that amounted to a shootout between police and a group of Uyghur men attempting to leave the country, and a 2012 raid of an “illegal religious gathering” that in reality may have been a normal prayer group the police interrupted before shooting four people dead. Far from any organized insurgency, the growing violence in the Uyghur homeland seems to have resulted from constant incursions by security forces into private and public Uyghur spaces; in one case officers conducting a household search lifted a woman’s veil against her will, prompting a violent response from the men in the household that left 16 Uyghurs dead, including six women.

The labeling of such incidents as acts of terror was no accident. With the start of the war on terror, a new field of foreign “terrorism experts” in the United States and Europe began to rely on Chinese state materials on Xinjiang as part of a global assessment of terrorist groups. These “experts” often took Chinese authorities at their word about the urgent risk posed by Uyghur separatism while ignoring regional experts who for the most part viewed any separatist risk as remote. Roberts singles out one notorious target of government anxieties—the East Turkestan Independence Movement, or ETIM—for special scrutiny. This happens to be the group to which the 22 Uyghur men detained at Guantanamo allegedly belonged.

In Roberts’ view, ETIM was a “phantom terrorist group.” Although a group commonly identified as ETIM did release propaganda videos in the early 2000s showing a dozen men training with rifles and guns, their members never called themselves by that name, and Roberts finds little evidence that the group existed in more than the barest sense of the word. ETIM and its members performed no confirmed acts of militancy inside China or anywhere else. The group never claimed responsibility for an act of violence. And it remains virtually unknown among Uyghurs in China, with “very little if any impact inside the Uyghur homeland.”

Yet in 2002, the U.S. and U.N. both declared ETIM a terrorist organization. Within two years its leader was dead and its members decimated. Since then, Chinese state media has denounced the phantom threat as the “black hand” behind almost all acts of violence in Xinjiang “for decades.”

With unprecedented detail, Roberts shows how ETIM’s image in the eyes of the international intelligence community went from a ragtag nonentity to a well-funded terrorist conspiracy. He provides suggestive evidence that the U.S., which initially dismissed China’s claims about ETIM as politically motivated, reversed its conclusions in order to secure China’s support on the U.N. Security Council in the weeks before the U.S. pleaded its case for the invasion of Iraq.

As late as December 2001, the U.S. State Department refused to accept China’s branding of Uyghur dissent as a “terrorist threat”; a U.S. representative suggested at the time that “the legitimate economic and social issues that confront people in Northwestern China” should be solved “politically rather than using counterterrorism methods.” By mid-2002, the story had changed. The U.S. was by then anxious to forestall any objections from China concerning its pre-emptive strikes in the Middle East. Western “experts” needed no further prompting to produce all the evidence required to treat ETIM as a significant threat to Chinese stability.

Some of these experts claimed that ETIM was underwritten by Al Qaeda, and this may have been the link that doomed them. Roberts finds no convincing evidence the connection was real. Indeed, the organization seems to have denounced 9/11 and rejected any connection to the Taliban or Al Qaeda. Even calling ETIM an “organization” appears to oversell its status, Roberts writes: “I would argue that the available information about [leader Häsän] Mäkhsum’s group suggests that it was not an organization at all, but a failed attempt to create a militant movement.”

The Uyghurs who ended up in Guantanamo Bay had indeed “trained” in an ETIM camp—in addition to morning jogs, there was one Kalashnikov, which they took turns shooting—but they did not appear to understand themselves as belonging to a particular militant group. Most had ended up in Afghanistan looking for a safe place to live after leaving Kyrgyzstan and Pakistan over fears they would be extradited. To be labeled a “terrorist” in the global war on terror, however, is to become a figure with no legitimate political grievances.

As the war on terror escalated outside of China, state-conjured threats of separatism led to harsher policies in Xin-jiang. Roberts argues that this environment created a “self-fulfilling prophecy” where state tactics made spontaneous acts of rage and violence—eventually including genuine acts of terrorism, such as a coordinated knife attack in Kunming in 2014—all but inevitable, retroactively justifying the policies that caused the violence in the first place. As with the insurgent subjects of European colonialism, the Uyghur “problem” may be best understood as an unwieldy state force in search of a subject upon which to exert itself.

With its rare abundance of Uyghur-language sources, The War on the Uyghurs pairs well with Eurasian Crossroads, James Millward’s brilliant longue durée history of Xinjiang. Elsewhere, Millward has said he is increasingly convinced that colonialism is a useful lens through which to understand Xinjiang since the late Qing era. Roberts, with his focus on more recent history, does not hesitate to describe Xin-jiang in settler-colonial terms, placing him in agreement with several other mainstream scholars of Central Asia, including Byler, Justin Jacobs, Dibyesh Anand, and Eric Schluessel. While often acknowledging the differences between Xinjiang and classical cases of European colonialism, these scholars have highlighted resource extraction, the Chinese state’s domination of local politics, and the conscious destruction, displacement, or assimilation of indigenous populations.

Some Chinese Communist Party mouthpieces have defended policies in Xinjiang by arguing that the United States—a powerful and belligerent critic of China’s domestic policies—has behaved with as much cruelty and force toward its own native populations. Roberts recalls a defensive message he received claiming that China’s policies were justified because “the US had done the same thing to Native Americans.” Yet it is precisely the similarities between the Uyghurs and other indigenous and native peoples that render their situation so acutely indefensible. Global norms have shifted in recent decades toward the recognition of indigenous rights, including the right to self-determination. China may not recognize the existence of indigenous people within its borders, but in 2007 the state voted in favor of the U.N. Declaration on the Rights of Indigenous People. The U.S., which initially voted against the declaration, later reversed its decision.

Such instruments are part of a rising awareness that the destruction of a people or their way of life is never justifiable, whether in the name of modernization and development or, in the case of Xinjiang, in the name of securitization. Roberts’ central argument is that the eradication of Uyghur life is facilitated less by any Chinese notion of manifest destiny than by the ideology of the war on terror and the infinite pliancy of a counterterrorism effort that justifies any policy and terrorwashes any law—including those once used to “civilize” the natives.

The War on the Uyghurs: China’s Internal Campaign Against a Muslim Minority, by Sean R. Roberts, Princeton University Press, 328 pages, $29.95

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Every Year, Police Pull People Over To Give Out Turkeys Instead of Tickets. That Could Be Illegal.


dreamstime_xxl_117166668

Thanksgiving is associated with tradition. And it appears there’s a relatively new one popular with police departments in recent years: pulling over unsuspecting drivers to give out turkeys instead of tickets.

This holiday season was no exception, with media reports detailing such outreach efforts put on by the Mesa Police Department in Arizona, the McAllen Police Department in Texas, and the Fulton Police Department in Illinois.

The catch: It’s potentially against the law.

“They’re legal so long as there is reasonable articulate suspicion that a crime was committed,” says Andrew Fleischman, a defense attorney with Ross and Pines. “Absent that, it violates the Fourth Amendment.”

In other words, the cops haven’t violated anyone’s constitutional rights if every driver pulled over for a turkey allegedly committed a traffic infraction. But that’s not what’s going on here.

Some departments aren’t exactly hiding it. The cops in Fulton, Illinois, for example, admittedly eschew the Constitution and conduct such traffic stops on those who do follow the rules of the road. “Officers weren’t plucking out scofflaws,” reads a piece on the program in SaukValley.com. “Rather, they were issuing turkeys instead of tickets, all part of Operation Turkey Stop to reward mindful drivers.”

And while other departments aren’t necessarily so brazen with the messaging, it stands to reason that officers likely aren’t exchanging turkeys for tickets when it comes to drivers who are actively endangering others and abusing the rules of the road.

“I was like ‘Oh my God, no, what did I do?'” said Perla Romano, who was stopped in McAllen, Texas. “‘I was scared because what did I do? I just panicked.'” In Mesa, Arizona, cops may be zeroing in on those who commit minor civil infractions, with a local report citing a driver being pulled over for a “wide turn.”

A spokesperson for the McAllen Police Department was not able to comment, and neither the Mesa Police Department nor the Fulton Police Department had responded to Reason‘s request as of this writing.

Though the initiative may sound benign, the Fourth Amendment exists for a reason: You have a right to privacy, and a right to be free from unreasonable searches and seizures. One wonders what might happen if an officer pulled someone over for a turkey and happened to catch a whiff of marijuana. Trade in that free Thanksgiving dinner for a potential jail cell.

Traffic stops rarely turn violent or deadly. Yet such instances are not unheard of. According to an investigation by The New York Times, police have killed more than 400 unarmed passengers—who were not suspected of any violent crimes—during traffic stops over the last five years, which amounts to more than one death a week. “It’s [a] frivolous use of their monopoly on force,” says Fleischman.

The spirit behind the program, according to the Mesa Police Department, is to engender affection between officers and the public during a time when cops have faced a sort of unprecedented pushback. Research indicates that such trust is indeed vital to building safer communities. But there are better ways for police to do that than by flouting the rule of law and violating people’s constitutional rights.

The post Every Year, Police Pull People Over To Give Out Turkeys Instead of Tickets. That Could Be Illegal. appeared first on Reason.com.

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Every Year, Police Pull People Over To Give Out Turkeys Instead of Tickets. That Could Be Illegal.


dreamstime_xxl_117166668

Thanksgiving is associated with tradition. And it appears there’s a relatively new one popular with police departments in recent years: pulling over unsuspecting drivers to give out turkeys instead of tickets.

This holiday season was no exception, with media reports detailing such outreach efforts put on by the Mesa Police Department in Arizona, the McAllen Police Department in Texas, and the Fulton Police Department in Illinois.

The catch: It’s potentially against the law.

“They’re legal so long as there is reasonable articulate suspicion that a crime was committed,” says Andrew Fleischman, a defense attorney with Ross and Pines. “Absent that, it violates the Fourth Amendment.”

In other words, the cops haven’t violated anyone’s constitutional rights if every driver pulled over for a turkey allegedly committed a traffic infraction. But that’s not what’s going on here.

Some departments aren’t exactly hiding it. The cops in Fulton, Illinois, for example, admittedly eschew the Constitution and conduct such traffic stops on those who do follow the rules of the road. “Officers weren’t plucking out scofflaws,” reads a piece on the program in SaukValley.com. “Rather, they were issuing turkeys instead of tickets, all part of Operation Turkey Stop to reward mindful drivers.”

And while other departments aren’t necessarily so brazen with the messaging, it stands to reason that officers likely aren’t exchanging turkeys for tickets when it comes to drivers who are actively endangering others and abusing the rules of the road.

“I was like ‘Oh my God, no, what did I do?'” said Perla Romano, who was stopped in McAllen, Texas. “‘I was scared because what did I do? I just panicked.'” In Mesa, Arizona, cops may be zeroing in on those who commit minor civil infractions, with a local report citing a driver being pulled over for a “wide turn.”

A spokesperson for the McAllen Police Department was not able to comment, and neither the Mesa Police Department nor the Fulton Police Department had responded to Reason‘s request as of this writing.

Though the initiative may sound benign, the Fourth Amendment exists for a reason: You have a right to privacy, and a right to be free from unreasonable searches and seizures. One wonders what might happen if an officer pulled someone over for a turkey and happened to catch a whiff of marijuana. Trade in that free Thanksgiving dinner for a potential jail cell.

Traffic stops rarely turn violent or deadly. Yet such instances are not unheard of. According to an investigation by The New York Times, police have killed more than 400 unarmed passengers—who were not suspected of any violent crimes—during traffic stops over the last five years, which amounts to more than one death a week. “It’s [a] frivolous use of their monopoly on force,” says Fleischman.

The spirit behind the program, according to the Mesa Police Department, is to engender affection between officers and the public during a time when cops have faced a sort of unprecedented pushback. Research indicates that such trust is indeed vital to building safer communities. But there are better ways for police to do that than by flouting the rule of law and violating people’s constitutional rights.

The post Every Year, Police Pull People Over To Give Out Turkeys Instead of Tickets. That Could Be Illegal. appeared first on Reason.com.

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, federal officials are in the main completely immune from claims for damages for violating the Constitution. But the Supreme Court has been clear that there is liability for “garden variety” search-and-seizure claims. So, over at Jurist, IJers Anya Bidwell and Nick Sibilla explain why the Court should grant review to a pair of cases and tell lower courts to stop tossing search-and-seizure cases.

  • The late artist Robert Indiana made a mint off of his painting of the word “LOVE,” with the letters arranged two by two and the O set at an angle. In this contractual dispute with the publisher of the similarly styled “HOPE,” was the trial court correct when it held that an arbitrator must determine the threshold issue of arbitrability? First Circuit: NOPE.
  • Merchants that do not accept American Express sue American Express for antitrust violations. The allegation? Amex prohibits participating merchants from “steering” customers to other cards that charge lower processing fees. The result is that Visa, MasterCard, and Discover face less incentive to compete on merchant fees, meaning higher fees even for merchants that don’t take Amex. Second Circuit: If there’s a claim here, folks who don’t take Amex are too remotely connected to enforce it.
  • Allegation: Man spends close to 25 years on death row after Philadelphia police fabricate evidence, coerce witnesses, withhold exculpatory evidence, knowingly present false testimony. Third Circuit: No qualified immunity. The right not to be framed is so obvious that detectives were on notice even without a factually analogous case. (Whether his suit is barred because he pled no contest to lesser, still serious charges in 2017 in order to secure his release is not a question for interlocutory appeal.) (Click here for some longform journalism.)
  • Maryland man obsessed with Bill Cosby rape allegations manages to have fabricated document (imputing tax fraud to one of Cosby’s accusers) added to docket in civil case against Cosby. For this, he is convicted of two counts of making false statements and sentenced to 32 months in prison. Third Circuit: That’s a slimy thing to do and it wasted a lot of people’s time, but it’s not actually a crime unless it was “material,” which the gov’t failed to prove. Set him free.
  • In which Judge Elrod of the Fifth Circuit has some fun in the footnotes: “For those who prefer acronymic efficiency, however, our holding is roughly as follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC’s IEPs for K.S., which included PLAAFP statements, TEKS goals . . . .”
  • Does it violate the Constitution to put someone in a freezing cell for about four hours without shoes, a jacket, or a blanket? District court: Sure could. No qualified immunity. Sixth Circuit: Ah, but the defendant here is a federal officer. And you can’t sue a federal officer for violating the Constitution in this way. Dissent: The gov’t’s lawyers repeatedly declined to make that argument. We shouldn’t make it for them. [For more on federal officer immunity, please do consider giving a listen to this lovingly crafted podcast.]
  • After confidential informant buys $10 of marijuana in front of Detroit woman’s home, officers with the “Major Violators Unit” ram open the woman’s front door just as she is reaching it herself, causing injuries to her face that require corrective surgery. Sixth Circuit: Her claim that officers didn’t knock and announce should not have been dismissed. However, the city’s admission at a press conference (after the district court made its ruling) that officers in the Major Violators Unit frequently lied on search warrant affidavits doesn’t mean she can reopen discovery—earlier news reports prior to the ruling indicated substantially the same thing.
  • In 1994, man is convicted of sexually abusing his nieces on the basis of testimony from the victims and from a pediatrician who had examined the girls. Since then, evolutions in forensic medical science have displaced the pediatrician’s methods and four of the nieces have recanted. Eighth Circuit: That’s not enough to overturn a conviction.
  • Indonesian Christians apply for asylum. The Board of Immigration Appeals denies the request, Ninth Circuit affirms. They try again, claiming things have gotten worse back home. BIA denies again, Ninth Circuit affirms again. Is the third time a charm? BIA: No. Ninth Circuit: Well, maybe. BIA didn’t assess whether their status as evangelical Christians who spread the Gospel might lead to their persecution. Dissent: “following the law and not your heart . . . is the hard part of judging.”
  • When speaking on public property, one’s level of First Amendment protection depends on the type of “forum” one is in, ranging from “non-public forums” with the least protection to “traditional public forums” with the most. Here, the Tenth Circuit does a 110-page deep dive on the many ways Albuquerque failed to satisfy its burden when it restricted expressive activities on sidewalks and medians—both traditional public forums.
  • In early 2019, the “United Constitutional Patriots” began camping along the U.S.-Mexico border, seeking to capture people illegally crossing the border. They wore camo fatigues, carried firearms, said “border patrol” as they approached people, and then called the actual border patrol to take people into custody. One member of the group is convicted of impersonating a gov’t employee. Tenth Circuit: Conviction affirmed, but the conditions of supervised release (including a ban on incurring new credit charges and allowing gov’t to search his property and finances) are a bit much.
  • Does face-elbowing a non-resisting, secured arrestee violate clearly established Fourth Amendment law? Eleventh Circuit: Quite maybe-ly. To trial these claims against an officer and the city of Miami Beach must go.
  • Members of the Plowshares movement, a Catholic protest and activism group opposed to nuclear weapons, break into the Naval Submarine Base Kings Bay in St. Marys, Ga., where they engage in “symbolic disarmament” by defacing facilities with spray paint and human blood. When arrested and charged with a bevy of federal crimes, they raise the Religious Freedom Restoration Act in their defense. Eleventh Circuit: Arresting trespassers and vandals is, indeed, the least restrictive means of keeping trespassers and vandals out of secure military facilities.

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

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, federal officials are in the main completely immune from claims for damages for violating the Constitution. But the Supreme Court has been clear that there is liability for “garden variety” search-and-seizure claims. So, over at Jurist, IJers Anya Bidwell and Nick Sibilla explain why the Court should grant review to a pair of cases and tell lower courts to stop tossing search-and-seizure cases.

  • The late artist Robert Indiana made a mint off of his painting of the word “LOVE,” with the letters arranged two by two and the O set at an angle. In this contractual dispute with the publisher of the similarly styled “HOPE,” was the trial court correct when it held that an arbitrator must determine the threshold issue of arbitrability? First Circuit: NOPE.
  • Merchants that do not accept American Express sue American Express for antitrust violations. The allegation? Amex prohibits participating merchants from “steering” customers to other cards that charge lower processing fees. The result is that Visa, MasterCard, and Discover face less incentive to compete on merchant fees, meaning higher fees even for merchants that don’t take Amex. Second Circuit: If there’s a claim here, folks who don’t take Amex are too remotely connected to enforce it.
  • Allegation: Man spends close to 25 years on death row after Philadelphia police fabricate evidence, coerce witnesses, withhold exculpatory evidence, knowingly present false testimony. Third Circuit: No qualified immunity. The right not to be framed is so obvious that detectives were on notice even without a factually analogous case. (Whether his suit is barred because he pled no contest to lesser, still serious charges in 2017 in order to secure his release is not a question for interlocutory appeal.) (Click here for some longform journalism.)
  • Maryland man obsessed with Bill Cosby rape allegations manages to have fabricated document (imputing tax fraud to one of Cosby’s accusers) added to docket in civil case against Cosby. For this, he is convicted of two counts of making false statements and sentenced to 32 months in prison. Third Circuit: That’s a slimy thing to do and it wasted a lot of people’s time, but it’s not actually a crime unless it was “material,” which the gov’t failed to prove. Set him free.
  • In which Judge Elrod of the Fifth Circuit has some fun in the footnotes: “For those who prefer acronymic efficiency, however, our holding is roughly as follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC’s IEPs for K.S., which included PLAAFP statements, TEKS goals . . . .”
  • Does it violate the Constitution to put someone in a freezing cell for about four hours without shoes, a jacket, or a blanket? District court: Sure could. No qualified immunity. Sixth Circuit: Ah, but the defendant here is a federal officer. And you can’t sue a federal officer for violating the Constitution in this way. Dissent: The gov’t’s lawyers repeatedly declined to make that argument. We shouldn’t make it for them. [For more on federal officer immunity, please do consider giving a listen to this lovingly crafted podcast.]
  • After confidential informant buys $10 of marijuana in front of Detroit woman’s home, officers with the “Major Violators Unit” ram open the woman’s front door just as she is reaching it herself, causing injuries to her face that require corrective surgery. Sixth Circuit: Her claim that officers didn’t knock and announce should not have been dismissed. However, the city’s admission at a press conference (after the district court made its ruling) that officers in the Major Violators Unit frequently lied on search warrant affidavits doesn’t mean she can reopen discovery—earlier news reports prior to the ruling indicated substantially the same thing.
  • In 1994, man is convicted of sexually abusing his nieces on the basis of testimony from the victims and from a pediatrician who had examined the girls. Since then, evolutions in forensic medical science have displaced the pediatrician’s methods and four of the nieces have recanted. Eighth Circuit: That’s not enough to overturn a conviction.
  • Indonesian Christians apply for asylum. The Board of Immigration Appeals denies the request, Ninth Circuit affirms. They try again, claiming things have gotten worse back home. BIA denies again, Ninth Circuit affirms again. Is the third time a charm? BIA: No. Ninth Circuit: Well, maybe. BIA didn’t assess whether their status as evangelical Christians who spread the Gospel might lead to their persecution. Dissent: “following the law and not your heart . . . is the hard part of judging.”
  • When speaking on public property, one’s level of First Amendment protection depends on the type of “forum” one is in, ranging from “non-public forums” with the least protection to “traditional public forums” with the most. Here, the Tenth Circuit does a 110-page deep dive on the many ways Albuquerque failed to satisfy its burden when it restricted expressive activities on sidewalks and medians—both traditional public forums.
  • In early 2019, the “United Constitutional Patriots” began camping along the U.S.-Mexico border, seeking to capture people illegally crossing the border. They wore camo fatigues, carried firearms, said “border patrol” as they approached people, and then called the actual border patrol to take people into custody. One member of the group is convicted of impersonating a gov’t employee. Tenth Circuit: Conviction affirmed, but the conditions of supervised release (including a ban on incurring new credit charges and allowing gov’t to search his property and finances) are a bit much.
  • Does face-elbowing a non-resisting, secured arrestee violate clearly established Fourth Amendment law? Eleventh Circuit: Quite maybe-ly. To trial these claims against an officer and the city of Miami Beach must go.
  • Members of the Plowshares movement, a Catholic protest and activism group opposed to nuclear weapons, break into the Naval Submarine Base Kings Bay in St. Marys, Ga., where they engage in “symbolic disarmament” by defacing facilities with spray paint and human blood. When arrested and charged with a bevy of federal crimes, they raise the Religious Freedom Restoration Act in their defense. Eleventh Circuit: Arresting trespassers and vandals is, indeed, the least restrictive means of keeping trespassers and vandals out of secure military facilities.

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