Tag: in-the-news

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

One of the drug war’s more pointlessly punitive policies is going up in smoke. Until this month, both New York and Pennsylvania mandated suspending the driver’s license of anyone convicted of any drug crime, even crimes wholly unrelated to driving. In recent years, a combined 330,000 driver’s licenses were suspended in the two states. Recognizing that this does little to protect the public and makes it far harder for ex-offenders to maintain steady employment (one of the best bulwarks against recidivism), New York and Pennsylvania finally scrapped their suspension statutes. Over at Forbes.com, IJ’s Nick Sibilla has more.

• The House of Representatives begins each day with a prayer, approximately 40% of which are delivered by guest speakers from a variety of faiths. Former pastor-turned-atheist asks to deliver a secular “prayer” to the House, but the House Chaplain turns him down. An Establishment Clause violation? D.C. Circuit: If the House is allowed to start the day with a prayer, it’s allowed to insist that the prayer be religious in nature (even if it seems to have adopted that policy solely in response to this litigation).
• Trinidadian green card holder has been subject to removal from the United States since 2007 but has routinely been granted administrative stays that have permitted him to remain in the country with his American-citizen wife and daughter. Now an immigrant rights activist, he has a testy confrontation with ICE officials when clergy and elected officials accompany him to one of his scheduled check-ins, resulting in negative publicity for the agency. ICE suddenly develops a renewed interest in deporting him. Unconstitutional retaliation for protected speech? Second Circuit (over a dissent): Although Congress tried to take jurisdiction of this question away from us, the Constitution forbids that. He stays for now.
• Defunct bar prep course sues Barbri and a host of law schools, alleging a wide-ranging conspiracy to keep it off campus and give Barbri a monopoly over the market for foreign Master of Laws students taking the bar. Second Circuit: The documents you attached to your complaint suggest you were barred from campuses not because of any conspiracy but rather because students thought your course materials and business practices sucked. Case dismissed.
• Federal law provides money to states to assist foster parents with the care of foster children. Can foster parents sue in federal court if the state has been unforthcoming with the money? Second Circuit (deepening a circuit split): That’s the bargain the states struck in exchange for the money. Dissent: That apparently comes as a surprise to the 14 states that submitted an amicus brief disagreeing with the majority.
• Here’s a quick test for determining whether a new judicial decision involves a hot-button culture war issue: Is the list of participating amici 10 or more pages? Relatedly, Third Circuit: A Catholic charity that has provided services to the city of Philadelphia for a century, but whose religious beliefs preclude it from certifying same-sex couples as foster parents, is not entitled to a preliminary injunction that would require the city to renew its contract with the charity. (Also the Third Circuit: You guys have helped a lot of kids together over the past 100 years, so it would be fantastic if you could work this out.)
• Pennsylvania Senate president pro tempore frivolously removes a state-law redistricting challenge to federal court, triggering emergency motions/hearing. The case is remanded back to state court within two days. Third Circuit: And the $29k in costs and fees awarded to the plaintiffs for that brief trip to federal court was completely reasonable, though the Senate president, sued in his official capacity, cannot be held individually liable for them. Sorry, taxpayers.
• American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We’ve got good news and bad news. The good news is that we agree with you. The bad news is that we’re going to fix the problem by prohibiting the loan collectors from making robocalls, too.
• A nonprofit trade association wants to hire in-house lawyers to provide legal advice and services to its members. Several states allow this, but North Carolina law says only lawyer-owned business entities are allowed to practice law to preserve the high ethical standards that lawyers are famous for. Fourth Circuit: While this is a “close” case, this does not infringe your rights to free speech or free association, has a rational basis, and is not unconstitutionally vague.
• Louisiana police officer is struck by a heavy object during a Black Lives Matter protest, suffering significant injuries. He sues the individual protest organizer, Black Lives Matter, and #BlackLivesMatter. Fifth Circuit: You can’t sue social movements or hashtags, but you’ve alleged enough facts for the negligence claim against the protest organizer to go forward.
• Louisiana woman makes “politically incorrect” statements on Facebook about a trans person she saw while clothes shopping, gets fired. Has she been discriminated against for being heterosexual, in violation of Title VII? Fifth Circuit: She has not because Title VII doesn’t cover sexual-orientation discrimination. Concurrence: “Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there.” (NB: The Supreme Court will consider this question next term).
• Fort Worth, Texas police go to wrong home in response to burglary alarm, rouse septuagenarian. Allegation: Though he obeyed command to set down his gun, police shot, killed him and then tampered with the crime scene, gave false statements so as to make the shooting look justified. Fifth Circuit: The excessive force claim can go to trial. But no suing (at least not yet) over the attempted cover-up because the officers (alleged) actions haven’t prevented plaintiffs from accessing the courts.
• Lollygagging drivers, cross your fingers! Chalking—the common practice of marking car tires to see who’s been parked too long—is a search under the Fourth Amendment. That, holds the Sixth Circuit, is what a trespass-based legal theory requires. If law enforcement searches a car by affixing a GPS tracker to it (as the Supreme Court held in 2012), they also search a car by putting chalk on it. Stay tuned to the ongoing litigation to see if that means chalking searches are unconstitutional.
• Homeland Security agent in Detroit uses his position as a federal officer to illegally detain someone for personal purposes. Yikes. And then at trial for that, prosecutors threaten him with impeachment evidence of his (alleged) lying about other misconduct on the job, which he committed as a favor for a woman he was sleeping with. More yikes. He doesn’t want to get impeached, so he chooses not to testify. Sixth Circuit: The prosecutors could do that. Conviction stands.
• In 2004, FBI fingerprint analysts finger the wrong guy for a terrorist bombing in Spain. Fast-forward to the present: Using the same (though perhaps updated) method, FBI fingerprint analyst fingers man for 2015 bank robberies. Should the man have been allowed to bring up the 2004 incident at his trial? The Seventh Circuit says no; by all means, cross-examine analysts about the method’s error rates, but identifying a specific wrongful imprisonment would appeal to the jury’s emotion and not their reason.
• Allegation: After suspect drops his gun and submits to arrest, Springdale, Ark. officer points his service weapon at the suspect’s head and says, “I’ll blow your fucking brains out if you ever approach me like that again.” Eighth Circuit: Compliant suspects have a clearly established right not to have guns pointed at them. No qualified immunity. Judge Colloton, concurring: The decision that clearly established that right is pretty iffy, but it controls here.
• Allegation: Escondido, Calif. police investigating report of domestic violence take man, who was not the subject of the report and was not aware of the officers’ presence, to ground as he exits apartment. Ninth Circuit (on remand from the Supremes): There is no case on point clearly establishing that officers can’t tackle people who pose no apparent danger. (Nor is there now.) Qualified immunity.
• Covina, Calif. police search man in 2013, resulting in conviction for possessing contraband. In 2016, the conviction is reversed; the search was illegal. Shortly after, the man sues officers, the city for false arrest (among other things). Which was too late, says the Ninth Circuit. That he was still appealing his conviction when his deadline to file suit expired doesn’t change anything.
• Police enter Elbert County, Colo. home that they know has two occupants: the owner and a guest for whom they have an arrest warrant (for a nonviolent crime). They set loose a dog into bedroom to bite, it turns out, the guy for whom they did not have a warrant (who says he didn’t hear police announce their presence). Excessive force? Tenth Circuit: No.

Friends, Washington’s state constitution is more protective of property than the U.S. Constitution, declaring, among other things, that “private property shall not be taken for private use.” And that was no accident. By 1889, when the state’s constitution was ratified, Washingtonians had endured decades of abuses at the hands of a corrupt territorial government, which enabled land grabs, bestowed monopolies, and granted special privileges to personally or politically favored interests. Thus, the Washington Constitution imposes stringent safeguards against taking property from A to give to B, and Washington courts have long applied these safeguards faithfully. Until now? In an amicus brief, IJ urges the Washington Supreme Court to decline the city of Seattle’s invitation to take Wite-Out to all the things that make the state constitution’s takings provision unique and cool.

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The three most libertarian members of Congress are, unsurprisingly, good friends and allies. Sen. Rand Paul (R–Ky.), Rep. Thomas Massie (R–Ky.), and Rep. Justin Amash (R–Mich.) team up constantly on often-lonely crusades to restrain federal spending, rehabilitate constitutional governance, and remove U.S. troops from far-flung conflicts.

The two congressmen were loyal footsoldiers in the senator’s star-crossed run at the 2016 GOP presidential nomination. (Massie’s story about canvassing for Paul in Iowa is one of the most colorful explainers for how the Tea Party movement mutated into Trumpism.) In 2020, Paul is firmly on the sidelines, as is Massie (“I am absolutely ruling out a run for any office in 2020 as a big-L Libertarian,” the congressman told me last summer), which leaves Amash, who is currently weighing his third-party options.

Paul last fall took the unusual step of endorsing Libertarian candidate Gary Johnson in his New Mexico Senate race against the eventually victorious Democratic incumbent Martin Heinrich and the GOP political newbie Mick Rich, despite the arm’s-length relationship over the years between Johnson and the Paul family. So when I interviewed the senator about Afghanistan on Sirius XM Insight’s Stand UP! with Pete Dominick Wednesday, I asked whether he would encourage Amash to run and/or consider supporting an Amash campaign.

“Well, you know, it’s sort of a weird thing,” Paul began. “My dad was a Libertarian candidate in 1988, and I supported him, but it has been difficult, because through the years there hasn’t been enough momentum gained to show electoral progress. So, like, in some Senate races, I’ve actually tried to discourage the Libertarian, because I think they draw enough votes from the Republican, who often is a libertarian. We had a race in Virginia not too long ago where I thought the Republican was more libertarian than the Libertarian, who wanted…[to] raise the gas tax and put GPSs on everybody’s car to monitor their driving, which didn’t sound very libertarian.

“So I don’t know,” Paul continued. “I like Justin Amash a lot. I think he and Thomas Massie are the leading lights of the U.S. Congress as far as the libertarian perspective. You just have to decide to what is your end, because the electoral prospects don’t look that good.”

In terms of President Donald Trump—who Paul has been trying to influence, especially on foreign policy—don’t expect the senator to back any challenger from the other major party. “As far as trying to end war or do some of the things that we want to do as libertarians,” he said, “we have a better chance with, I think, a Trump than any of the ones on the Democrat side.”

Speaking of ending war, here is an edited portion of our conversation covering that lamentably evergreen topic:

Welch: [A]lmost from the beginning [of your Senate career], you have used the formulation in speeches and also in bills of, “Hey, it’s time to declare victory in Afghanistan and bring our troops home.” Can you give a sense of how the progress of that concept…has evolved over time?

Paul: Well, you know, it’s too slow for my taste—I think we should have been gone years ago. And I think that there is some progress, but it’s very, very slow.

There are two important pieces to the puzzle that are improvements. We have a president—the first president, really—to say that the war has long been over, there is no military solution, he’s bringing the troops home. And President Trump has said that several times. The problem is that several of his advisors that he has appointed don’t necessarily agree with him. So they either countermand his sentiments or talk him into delaying actually ending the war.

The other thing that I think has happened over time—and this is sort of both positive but also sad at the same time—is that you can’t meet a general anywhere in the Pentagon who believes there is a military solution to the Afghan war. That’s the main question I harangue them with when they come up to Capitol Hill to testify before our committees: I say, “Is there a military solution?” And they all admit there is none. There’s been mission creep that’s now nation-building, but they all admit no military solution.

My follow-up question is, “Then I don’t want to send my kid, your kid, or my nephew to Afghanistan, because if there is no military solution, what is one more death going to do over there?” But there are still a number of people who are of what I call the Vietnam village strategy—take one more village and we’ll get a better negotiated settlement.

I’m of the belief we need to declare victory and come home, because…it’s a mess now, but it will be a mess when we come home, too. And we just need to acknowledge that our original mission was to go after those who plotted or attacked us on 9/11, and there’s frankly none of them left. I asked the secretary of state this not too long ago, “Tell me who’s left. Tell me their names, and then we’ll talk about whether you have permission to stay there to get a certain person.” There’s no name left….We’re talking about forces that are associated with forces that are associated with forces that are associated with somebody else. It’s so tangential to have any link to 9/11 that it really doesn’t exist.

So I don’t know. I’m encouraged that the president is listening, but I’m discouraged that when we talked about it recently the Senate voted 77–23 to remain indefinitely.

Welch: A lot of the Democratic field running for president…many of them have been saying, pretty strongly, things that sound like Rand Paul in terms of revisiting authorizations of the use of military force—ending them, as you have advocated—and bringing troops home. But even yesterday, I think, Mayor Pete Buttigieg said, “Yeah, we should totally come home from Afghanistan just as soon as we can make sure that they’re not going to ever hurt us again, or commit terrorism again.”

Paul: And my response to that is if we’re going to wait until there’s nobody left with a suicide vest in the Middle East or around the world, we’ll wait forever. And there’s some argument that the longer you stay in their countries, the more likely they are to have suicide vests and to remain.

But the problem with some on the left is, some of them are pretty good on Afghanistan, some are pretty good on Yemen. We have allied with Bernie Sanders and others on saying we shouldn’t be involved in the Yemen war. And yet some of these people who have good instincts on Afghanistan and Yemen are now so bellicose on Russia that you can see them actually wanting to butt heads, even militarily, with Russia. So it’s sort of a weird mix, and not a consistency.

But the recent vote on telling the president that he…did not have congressional approval for the participation in the Yemen war was historic. Even during the height of the unpopular Vietnam war, we never had both houses tell the president that he couldn’t do what he was doing. This was a remarkable thing that happened, and I think underreported by the media because the media is so consumed with talking about Russia this, Russia that, Paul Manafort this and that. But they really lost a great news story, and that was both houses of Congress told a sitting president that he couldn’t be at war. He vetoed it, but it’s still historic in the sense that it’s never happened before.

Welch: Do you foresee there becoming an ability to overturn vetoes like that going forward? Is there momentum on the side of people who are like, “Hey, we should check the Forever War”?

Paul: Well, you know, the president’s statement in his State of the Union that great nations don’t fight perpetual war is right out of the libertarian playbook, right out of libertarian lingo, and could be at any one of our meetings when libertarians talk about less intervention and less war. The sad thing is Congress really isn’t there….

I know you’ve seen and published some of this polling that the people overwhelmingly, maybe over 60 percent of people of all different parties, think it’s time to come home from Afghanistan. But we’re not there in Congress. In fact, oftentimes things that are pretty popular with the public are completely the opposite with Congress. So that’s the disappointing thing, is that Congress doesn’t reflect the will of the people that well.

Welch: I have a juvenile image in my mind of you and Lindsey Graham in the parking lot of a golf course, kind of hitting your golf clubs against your hands, looking at each other warily, waiting to see who is able to bend the president’s ear on an issue that both of you care about a lot and totally disagree with one another on, which is foreign policy. Can you characterize…what does the process look like by which you are trying to remind the president of the instincts that you like of his foreign policy, and how do you step in between the conversations with the hawks that are surrounding it?

Paul: I can give you an example. I was in the Oval Office with the president and five or six hawkish senators. They had gotten a meeting to try to persuade him that they needed to stay in Syria, that the new mission in Syria needed to be to stay until the Russians leave, until the Iranians leave. Totally unrealistic sort of mission, and really nothing related to the original mission, which was the defeat of ISIS. And so they’re hectoring him to stay. He’s pushing back. But me being in the room helped him to have an ally, because he had no allies, and that’s a real problem. The five senators that had gotten the meeting with the president didn’t invite me. I got invited by somebody else, or I had a meeting with the president before them, so it worked out perfectly that I was in the room. But I’m the only one defending the president, as well as the president defending himself.

But I think that’s the hard part is, is that while the president’s instincts are good on ending these wars, the capital is swarming with this bipartisan 70-year consensus for war and for intervention, and that we should always be involved everywhere around the planet. And it’s just overwhelming.

So I think that it’s great that his instincts remain strong, and I think he could do something historic like ending the war, and I actually think it would help his political prospects. Because I think not only is there a peace dividend to a country not spending $50 billion a year in Afghanista—and he uses the terminology of that dividend, that $50 billion that he thinks we’re wasting in Afghanistan all the time—that not only is there a peace dividend, I think there is a political dividend in the sense that I think there’s an independent swath of the public that does want to come home from Afghanistan, and would see it as a candidate that they could support if they can get somebody to finally end a war.

Welch: You’ve talked about the president’s instincts as kind of being in the right direction, but are you not alarmed by more of a bellicose approach, even as recently as this week or last week, with tightening sanctions in Iran, for example? And then more immediately in our backyard, towards Venezuela and Cuba, kind of a more buttinsky approach locally than maybe he’s talked about in far-flung areas?

Paul: I think it’s a mixed bag. I think that Afghanistan is such an almost hopeless cause, without really any foreseeable solution, that everybody’s heading in that direction and the president’s already there. He sees that the Iraq war was a mistake, a regime change destabilized the Middle East. He doesn’t necessarily see Iran that way.

I see Iran the same way, that if you go in militarily and topple that regime, one, it’s a much bigger country than Iraq, more populous with more weaponry, and I think it’s a bigger disaster. And I don’t think anybody is going to be able to sell this crazy Cheney notion [that] they’re going to greet us as liberators. But the administration doesn’t really see it that way, and they are much more bellicose.

So when [Secretary of State Mike] Pompeo came to our Foreign Relations Committee a week ago, I asked him point blank, “You’ve named the Revolutionary Guard, all of them, as terrorists. Is this a pretext? Is this a justification? Do you believe you have the authority under the 9/11/2001 proclamation to go to war with Iran without asking Congress?” And he hemmed and hawed and said, “Well, you know,” he says, “I’ll leave that for the lawyers.” And I said, “Really? This is a major constitutional principal here. We’re not talking about some bizarre, esoteric part of the law. We’re talking abut whether or not you can go to war without the permission of Congress.” And he hemmed and hawed, so I finally told him, I said, “You do not have our permission. The Congress has not given you the authority.” Because that’s crazy for people to believe that we would allow any president the power just to begin a new war.

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Chambers. Available now on Netflix.

Let’s see if you can guess where this is headed: Two teenaged girls die at nearly the same moment: Sasha of a heart attack, Becky of an accidental electrocution. Doctors save Sasha with a transplant of Becky’s heart.

Pretty soon, Sasha flashes a startling talent for fencing, a sport she’s never tried before. (Coincidentally, Becky was on the school fencing team.) Even more surprising: Though Sasha is right-handed, she fences left-handed. (Coincidentally, Becky was left-handed.) And those dreams! Sasha starts Googling stuff like “strange visions after organ transplant.”

So, okay, Netflix’s new haunted-transplant series Chambers has probably been made, in one guise or another, about a zillion times in (literally) the last hundred years. It doesn’t matter. This is a stylish, spooky piece of work, with some original twists that give it a little more punch than your average flick.

One is the sun-seared Arizona landscape in which it takes place, where truck-stop towns and precious New Age resorts cluster along the edge of the Navajo reservation. Sasha herself is at least partly Navajo, an orphan being raised by a loving but rough-hewn uncle. (The identity of her parents and the circumstances of their deaths, like much about Sasha’s background, is withheld in Chambers‘ early episodes.)

Prior to her heart attack, Sasha (runway model Sivan Alyra Rose, doing a bravura job in her first major screen role) was a good but in no way remarkable kid in one of the forgotten desert backwaters. Ambition: to open a nail salon with her amusingly gabby high-school pal Yvonne (Kyanna Simone Simpson of The CW’s Black Lightning) after graduation.

But following her transplant, Sasha is suddenly a budding academic as well as a fencing champion. And that’s not the only challenge to her old identity. The parents of her heart donor Becky, who see Sasha as a surviving fragment of their daughter, begin pressing gifts on her: Becky’s clothes. Becky’s car. And a scholarship to Becky’s fancy prep (and otherwise lily-white) school, the sort of place that has a “life coach” on staff as well as a safe-space nap room.

Soon, Sasha’s uncle and then her friends sense character changes. But is she turning white? Or—more sinister—turning Becky? Because the Becky in Sasha’s nightmarish dreams was both stalker and stalked, bullying schoolmates but also the target of a surveillance camera hidden in her bedroom. Wonders Sasha: “What if whoever was watching her is watching me?”

Series creator-writer Leah Rachel shows a far defter touch with her material than might be guessed from her relatively thin resume, which consists mostly of small internet projects. She resists the modern horror movie temptation of a quick body count and lets her story unfurl slowly and creepily, driven by characters who manage to be both sinister and sympathetic.

Uma Thurman, who’s spent the past decade or so giving fine performances in little-watched productions, may right her career with the role of Becky’s dippy mother Nancy Lefevre, laid low by a wound that cannot be cured by psychobabble paganism. Tony Goldwyn (Scandal) remains certain that sage bouquets and New Age breathing exercises will help, but there’s also a disturbing streak of S&M in his Aquarian spiritual palette.

Even the craggy scenery seems like a brooding character, coiled to strike, which it eventually does, spawning one of Arizona’s massive haboob duststorms, as palpable an example of elemental evil as you’re ever likely to see—and a reminder that whatever lurks in Sasha’s part of the desert is not likely to be quelled by aromatherapy or taoist meditation. Chambers may be an old story, but it’s got a brutally modern punch.

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A New Orleans rapper has been arrested on child desertion charges because she sent her 5-year-old kid to school via Lyft.

On Tuesday, the St. Bernard Parish Sheriff’s Office announced on Facebook that they’d arrested 27-year-old Reiona Oliver (stage name “GameOva Reedy”) after Oliver summoned a Lyft to her home to take her child to school eight miles away.

The Lyft driver, after realizing Oliver would not be accompanying her son, immediately drove him to a police station to report his mother. Oliver was arrested later that day.

Oliver, in a now deleted Instagram video, reportedly said that she sent her son to school by himself because she was not feeling well and that she didn’t see anything wrong with leaving him with a Lyft driver.

Lyft has a policy against drivers picking up unaccompanied minors, so it sounds like Oliver violated the company’s terms of service. But arresting her for this is ludicrous.

Firstly, if the driver was so opposed to taking Oliver’s son on an unaccompanied ride to school, it would have been far less of a hassle for everyone if he or she had just refused to take the child in the first place.

Obviously, the boy was not in danger from riding in a car with this particularly over-concerned driver. Taking him to a police station didn’t make the child safer; it only escalated what should have been a routine trip to school into a criminal matter.

It was also an absurd overreaction to charge Oliver with child desertion. Louisiana law defines child desertion as “the intentional or criminally negligent exposure of a child under the age of ten years…to a hazard or danger against which the child cannot reasonably be expected to protect himself, or the desertion or abandonment of such child, knowing or having reason to believe that the child could be exposed to such hazard or danger.”

Clearly there was no danger in this case from this particular Lyft driver. And while rideshare drivers do occasionally commit crimes against their passengers, that’s an incredibly rare phenomenon. An exhaustive CNN review of assaults by rideshare drivers found only 103 such cases. The victims, more often than not, were intoxicated women travelling alone, not children.

Rideshare apps also allow realtime monitoring of a ride, as well as identifying information about the driver. (In the very few cases where minors have been victimized by their Uber or Lyft driver, these apps proved crucial in identifying the perpetrator.) Indeed, rideshare companies exist that cater specifically to giving rides to unaccompanied children.

If allowing kids to take rideshare cars by themselves counts as a “hazard or danger,” a lot of other mundane activities would have to get added to that category as well.

In short, Oliver’s case is yet another example of how a routine activity involving a minor who was never in any danger can become a criminal matter. All it takes is overwrought concerns and overly aggressive enforcement.

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“The Satanic Temple is a new religious organization that was founded in 2013, kind of as a prank, but very quickly gained a huge amount of authentic followers,” says Penny Lane, director of Hail Satan?, a documentary premiering at select theaters this week.

Headquartered in Salem, Massachusetts, the Satanic Temple began by organizing theatrical stunts designed to shock people. As its membership grew, political activism became central to the Temple’s mission. It challenged Christian monuments on public land and opposed the teaching of religion in public schools, making enemies of politicians, television pundits, and pastors across the country.

So what do followers of the Satanic Temple believe? “You do find a range of political views within this religious organization,” Lane says. “But when your religious tenets are about rebellion against authority, checking your beliefs against our best evidence…autonomy, freedom, liberty—yeah, you certainly see a large overlap with a libertarian point of view.”

In this interview, Lane talks about what makes the Satanic Temple tick and what its struggles with Christians, politicians, and the mainstream media say about religion in America today.

Produced, hosted, and edited by Todd Krainin.

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In May of 2018, President Donald Trump signed a new law allowing patients with life-threatening conditions to access experimental medications without obtaining FDA approval.

In our latest podcast, Reason‘s Zach Weissmueller sits down with Christina Sandefur, executive vice president of the Arizona-based Goldwater Institute, which played a key role in getting the law passed in 41 states before it arrived on the president’s desk. 

For more on the topic, watch Weissmueller’s video documentary on subject. In this conversation, he and Sandefur delve deeper into the details of the new Right to Try law, why it matters, how it got it passed, some criticisms of the legislation, and what more needs to be done to bring down prescription drug costs and spur innovation.

Audio production by Ian Keyser.

 

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Thanks to a clerical error, a mother of two in upstate New York spent three nights in jail over Easter weekend. She didn’t commit any crimes. Someone just accidentally entered her name on the wrong line of a document.

The story began last Friday evening, when Jessica Donovan got into an argument with employees at a pizza shop near her home. She thought the restaurant owed her a free pie; the employees disagreed. She eventually stopped trying and walked out, knocking over a trash can on her way out. She claims the employees had been swearing at her, and that this was part of why she was so upset.

The pizzeria employees then called the cops, who came to Donovan’s home in Colonie, a suburb of Albany. They weren’t planning to arrest her over the incident. But when they ran her name through the police database, they discovered a warrant was out for her arrest.

Here’s the problem. The November 2018 warrant was actually meant for John Gannon Jr., Donovan’s ex-boyfriend, who had allegedly been neglecting to pay her child support. The document lists Donovan as the petitioner and Gannon as the respondent, but the wrong name has inserted into a crucial sentence: “You are therefore commanded to arrest Jessica L. Donovan, and bring said person before this court to be dealt with according to law.”

“I said I have custody of my kids,” Donovan tells the Albany Times Union. “They told me the date of the warrant, and I said I was there that day when they signed the warrant [to arrest Gannon]. I said ‘I have proof’…but they wouldn’t take my proof.”

Even after she was arrested, Donovan should have been released the next day, right? Nope. The Colonie Police took her to appear before a town justice the next morning. The judge set her bail at $500, which Donovan’s mother was ready and willing to pay. But jail officials wouldn’t let her go. They said the matter had to be settled by the family court, where the incorrect warrant had been issued.

“Our staff did not take the bail because it being a superior court warrant, there’s nothing really that could’ve been done because her name was the one that was to be arrested and brought forthwith in front of the family court judge,” Albany County Sheriff Tim Apple tells WNYT. “Obviously family court is not in session.”

So Donovan spent Easter weekend in jail. It was a harrowing experience. “It was dirty, puke on the floor, no one cleaned it, ugh the toilet was just, oh my God,” she says to WRGB. Donovan also did not have access to her anti-depressant medication and was placed on suicide watch. “I didn’t sleep. I didn’t eat a single thing. I didn’t drink water. I think I had one serving of milk so that I didn’t pass out,” she tells the Times Union.

On Monday, Donovan was released after appearing in family court. The New York State Office of Court Administration’s director of public information, Lucian Chalfen, issued the following statement to WNYT:

What started out as a clerical error magnified into a very regrettable and Kafkaesque mistake. The name of the petitioner, as opposed to the respondent, ended up on the line ordering police to execute the warrant, which the Judge signed. He is mortified about what transpired and has been counseled by the Administrative Judge for the Judicial District covering Albany. A corrected warrant has since been issued. While it is difficult to mitigate human error, we are looking into the process to see about additional safeguards.

It’s not unheard of for administrative mix-ups to result in police arresting the wrong suspects. Earlier this week, Reason‘s Zuri Davis wrote about an Ohio woman, Ashley Foster, who was mistaken for a different woman by the same name and arrested for alleged drug trafficking. She spent a week in jail, lost her job, and had her kids temporarily taken away.

Both Winn and Apple have expressed their regret over what happened to Donovan. But words only go so far. “Somebody messed up,” Donovan tells the Times Union. “I honestly want somebody to pay for that.”

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From Wednesday’s Doe v. Mckesson:

On July 9, 2016, a protest took place by blocking a public highway in front of the Baton Rouge Police Department headquarters. [Footnote: This case comes to us on a motion to dismiss, so we treat all well-pleaded facts as true.] This demonstration was one in a string of protests across the country, often associated with Black Lives Matter, concerning police practices. The Baton Rouge Police Department prepared by organizing a front line of officers in riot gear. These officers were ordered to stand in front of other officers prepared to make arrests. Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest.

In the presence of Mckesson, some protesters began throwing objects at the police officers. Specifically, protestors began to throw full water bottles, which had been stolen from a nearby convenience store. The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on behalf of [Black Lives Matter].” The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence.

At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Doe’s face. Officer Doe was knocked to the ground and incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, “and other compensable losses.”

Doe sued Mckesson and Black Lives Matter; the Fifth Circuit held that Black Lives Matter wasn’t an organization that can be sued, and also rejected the claims that Mckesson was vicariously liable for the action of the rock-thrower or conspired with the rock-thrower. But the court allowed the negligence claim against McKesson to go forward:

We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration.

The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat. Ann. § 14:97. As such, it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration….

Furthermore, as the purpose of imposing a duty on Mckesson in this situation is to prevent foreseeable violence to the police and bystanders, Officer Doe’s injury, as alleged in the pleadings, was within the scope of the duty of care allegedly breached by Mckesson.

We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is….

The Supreme Court has made clear that “[t]he First Amendment does not protect violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982)…. Assuming that the First Amendment is applicable to Mckesson’s conduct, in order to counter its applicability at the pleading stage Officer Doe simply needed to plausibly allege that his injuries were one of the “consequences” of “tortious activity,” which itself was “authorized, directed, or ratified” by Mckesson in violation of his duty of care. See id. (“[A] finding that [the defendant] authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity.”). Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory. The district court erred by dismissing Officer Doe’s complaint—at the pleading stage—as barred by the First Amendment.

Continue reading “Organizer of Black Lives Matter Highway-Blocking Protest Can Be Sued for Injury to Police Officer”

“Half-a-million to a million species are projected to be threatened with extinction, many within decades.” So warns the leaked Summary for Policy Makers from a draft of forthcoming report from the United Nations’ Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. The final version, which is scheduled for release on May 6, will be mammoth 1,800-page assessment of scientific literature on the state of nature.

Dire warnings of an imminent global extinction crises are not new. As I reported in my book The End of Doom, S. Dillon Ripley of the Smithsonian Institution predicted in 1970 that in 25 years, somewhere between 75 and 80 percent of all the species of living animals would be extinct. That is, 75 and 80 percent of all species of animals alive in 1970 would be extinct by 1995.

The good news is that however dire the trends with respect to the natural world are, they are unlikely to persist for the remainder of this century. An insightful 2018 BioScience article by some Wildlife Conservation Society researchers identifies the “conservationist’s paradox“: The “same forces that are destroying nature now are also creating the circumstances for long-term success.” As a result of wealth creation, technological progress, and urbanization, humanity will be withdrawing from nature, leaving vast expanses of land and sea for the recovery of wild species.

And that means the dire predictions in the leaked draft are as likely to come true as those made by Dr. S. Dillon Ripley nearly 50 years ago.

 

 

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A rule banning health clinics from referring patients for abortions if they receive federal family-planning funds has been blocked nationwide, per a new U.S. District Court ruling.

The Thursday order from Judge Stanley Bastian puts a temporary injunction on a rule change issued by the U.S. Department of Health and Human Services (HHS) in March. HHS had barred any group that gets certain federal funds from “promoting, encouraging, or advocating abortion” in any way or from providing patients with specific information about where they can obtain one.

In addition, such entities would have to maintain a “clear physical and financial separation” from any related entities that perform abortions, a move meant to strike a blow at Planned Parenthood.

Under the long-standing rules of Title X funding—which theoretically supports reproductive health and family planning services for low-income Americans—using this money to perform or support abortion services was already off limits. But with the March HHS policy, doctors and other staff at places that received Title X funds would also be prohibited from referring patients to abortion providers or offering information about the procedure in a way that seemed to condone it.

“The Department believes that, in most instances when a referral is provided for abortion, that referral necessarily treats abortion as a method of family planning,” the HHS guidance states. Thus “such a referral makes the Title X project or clinic a program one where abortion is a method of family planning, contrary to the prohibition against the use of Title X funds in such programs.”

In his decision, Judge Bastion says the rule change “reverses long-standing positions of the Department without proper consideration of sound medical opinions and the economic and non-economic consequences.” He found it likely that the change runs afoul of the Affordable Care Act and “likely violates the central purpose of Title X, which is to equalize access to comprehensive, evidence-based, and voluntary family planning.”

Bastian also found that the change would likely be considered “arbitrary and capricious” under the Administrative Procedure Act.

Banning referrals and certain sorts of talk around abortion, he adds, “creates unreasonable barriers for patients to obtain appropriate medical care; impedes timely access to health care services; interferes with communications regarding a full range of treatment options between the patient and their health care provider, restricts the ability of health care providers to provide full disclosure of all relevant information to patients” and “violates the principles of informed consent and the ethical standards of health care professions.”

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FREE MINDS

Porn story riles school paper. A high-school journalism teacher in Stockton, California, is fighting administrators over a school newspaper story on an 18-year-old student who appears in porn films. “This young woman has quite a story to tell,” says the teacher. “She has every right to tell her story, and we have every right to report it.”

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FREE MARKETS

How kid-friendly paraphernalia killed legal pot. Smithsonian magazine looks at how the 1970s momentum toward decriminalizing marijuana failed:

I remember the first time I saw them. I was in the Library of Congress, looking through old issues of High Times magazine. The advertisements for certain products—like the BuzzBee Frisbee (with a special pipe so you could literally “puff, puff, pass”), “You’re the Dealer!” board game, and pictures of clowns hawking rolling papers—seemed both charmingly representative of the mid-1970s as well as pretty blatant in their appeal to kids. The ads also spoke to the enormous paraphernalia market that had risen as a result of a dozen states decriminalizing the possession of up to an ounce of marijuana between 1973 and 1978. The numerous ads that lined the pages of High Times (as well as the existence of the magazine itself) give some insight into just how vast the marketplace, and its clientele, was at the time.

That booming paraphernalia market, however, would also prove to be decriminalization’s undoing.

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FREE MOVEMENT

The relationship between U.S. border patrol agents and paramilitary groups is a little too cozy, according to an article in The Washington Post. Border authorities mostly let the vigilantes do their thing, even when that thing is impersonating actual law enforcement agents.

“The apparent cooperation of federal border agents and civilian militias is a disturbing sign that President Trump’s open disregard for what he calls America’s “very stupid” immigration laws is taking hold in perilous ways,” the authors suggest. “A fusion of vigilantes and the state is a particular threat to the Constitution and one of the signs of rising authoritarianism that historians warn democracies to guard against.”

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ELECTION 2020

“We need a president who recognizes sex work as work.” Here’s independent 2020 presidential candidate Mike Gravel after writer and porn actress Sydney Leathers announced that she’s supporting him:

We're honored to have Sydney's endorsement. We need a president who recognizes sex work as work just like any other work, and doesn't draw arbitrary lines. We need to recognize the humanity of all people, no matter their occupation. https://t.co/fihtdcsFQU

— Mike Gravel (@MikeGravel) April 25, 2019

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QUICK HITS

• Click through to the screenshots of JetBlue’s comments about its facial recognition program for some truly terrifying stuff:

This is only the beginning. https://t.co/tfvm01NrT0

— Edward Snowden (@Snowden) April 25, 2019

• “The U.S. economy grew at a solid 3.2% annual rate in the first three months of the year, a far better outcome than expected,” reports the Associated Press.
• The New York Attorney General’s Office is opening an investigation into Facebook’s email harvesting practices.
• Some news about Reason‘s old friend Preet Bharara:

Preet Bharara said that the #Bronx120 were members of two violent street gangs that had "terrorized their neighborhood" for years. Turns out, more than half were never alleged to be in gangs, and two thirds were not convicted of violence. Most sold weed. https://t.co/QCwWJsLvSP pic.twitter.com/tnbjne6dAd

— Alice Speri (@alicesperi) April 25, 2019

• Moral panic for the win:

Maryland's Terrible Cyberbullying Law Gets Worse With The Addition Of Jail Sentences For Inducing Suicide Attempts https://t.co/lZXySt8nJi

— techdirt (@techdirt) April 25, 2019

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