(image) The civil service commission in New Orleans has punted on a decision to allow the police superintendent to hire and fire commanders at will—delaying the issue until next month, the New Orleans Advocate reports.
The commander position was created on a temporary basis in 2011 to replace district captains. Commanders report to deputy superintendents and are not promoted to their positions based on civil service rules. Michael Harrison, New Orleans' police superintendent, argues replacing captains with such commanders has made it possible for the department to implement reforms after a Department of Justice investigation found a systemic pattern and practice of constitutional violations.
Harrison said the request was the most important and critical one he has made in his tenure, saying the commanders he and his predecessor had appointed made "lasting reform and change" possible. ""The continued success of these reforms is likewise reliant upon these individuals," the police superintendent said.
The personnel administrator for the civil service commission, who is leading the study into the request, has taken a posture against it, calling it "unprecedented" and complaining "it would subject individuals to political pressures."
That's exactly right. The absurdity of the entire culture of the civil service protections system aside, the idea that police officers—government agents granted the authority to use violence to enforce the laws of a democratic government—falls apart under any kind of critical engagement. A combination of civil service rules, union contract provisions, and state and federal laws and precedents make it exceedingly difficult to hold police officers accountable for misconduct. Worse, the first two of these elements are often significantly inoculated from the democratic process even as they were borne of it. Moves such as that New Orleans' police leadership are taking to implement and protect reform are crucial to reverse that trend. Democratic governments face political pressure all the time—it's what makes them democratic. Police officers, given their particular power over the lives of the people they are supposed to work for, should not be completely exempt from them.
2017-02-22T17:15:00-05:00Scott Pruitt, the former attorney general of Oklahoma, was confirmed last week as the head of the U.S. Environmental Protection Agency. Activist groups and Congressional Democrats urged that the vote on his confirmation be delayed until emails detailing his communications with folks in industry were released under court order this week. The evident hope was that combing through the emails would reveal some kind of "smoking gun" that would forestall his becoming EPA adminstrator. Well, some 7,000 pages of emails have now been released and posted by the liberal watchdog group the Center for Media and Democracy (CMD). It turns out that an elected Republican politician was in frequent contact with constituent companies who wanted to make known their concerns about the impact of federal regulations on their businesses. I confess that I have not read through all of the emails, but the reports in The New York Times and The Washington Post have evidently turned up nothing that is particularly surprising or corrupt in this batch (more emails are expected to be released later this month). As the Times reports: The emails do not appear to include any request for his intervention explicitly in exchange for campaign contributions, although Mr. Pruitt was separately working as a member of the Republican Attorneys General Association to raise money from many of the same companies. Despite the large volume of correspondence between Mr. Pruitt's office and the industry players, the emails are unlikely to cause Mr. Pruitt significant new problems. They do expand on email exchanges or topics that previously had been disclosed. To a large extent, this episode is another tiresome example of selective political outrage: Special interest, like beauty, is in the eye of beholder. For example, in its 2015 report Obama's Carbon Mandate: An Account of Collusion, Cutting Corners, and Costing Americans Billions, the Senate Environment and Public Works Committee found: EPA and environmental activists had cozy relationships and egregiously used personal emails and held meetings away from EPA headquarters, including a local park and coffee shops. Of specific interest was the role that the Natural Resources Defense Council played in helping the EPA devise the Obama Administration's rules for reducing the emissions of carbon dioxide. The report details how NRDC staff was able to get their ideas for imposing greenhouse gas limits on power plants before EPA officials, how EPA policy makers and attorneys worked closely with NRDC's experts on developing these regulations, and how EPA relied on groups like NRDC as partners to communicate messages to the public about the pro posed rules. Bemusingly, the Post reports today: Rhea Suh, president of the Natural Resources Defense Council, said in a statement. "These [Pruitt] emails tell us that he's in league with the very industries we've now entrusted him to police." If an agency or government office is empowered to punish and reward, then it's not a surprise that special interests - activists and industry - seek to persuade government functionaries to reward their friends and punish their enemies. In any case, the public should expect maximum transparency from government officials. In that spirit, the Attorneys General United for Clean Power will doubtlessly soon release their Common Interest Agreements pertaining to consultations with activist groups formulating demands that ExxonMobil turn over documents concerning its contacts with think tanks, scholars, and others who have been skeptical of catastrophic man-made warming. [...]
(image) Are we witnessing the decline of investigative journalism? Jack Shafer thinks so. Writing in Reason's April issue, Shafer explains how economic incentives, combined with the rise of cable TV and the web, have led led to an industry-wide retrenchment that is severely hurting the investigative beat.
Here's why that matters, Shafer writes. The biggest losers haven't been journalists—who cares about them, anyway?—but members of the public, from whom more perfidy is concealed, while public officials, bureaucrats, and corrupt businessmen have scored.
src="https://www.youtube.com/embed/Cmm5NIOs4tI" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">
Three Reason editors-in-chief arrived at the International Students for Liberty Conference to discuss four decades of reporting. Marty Zupan, who edited Reason in the 1980s; Nick Gillespie, editor in the aughts; and current magazine editor Katherine Mangu-Ward have all covered world events from a libertarian perspective.
Click below for full text, links, and downloadable versions.
2017-02-22T15:40:00-05:00President Donald Trump's administration is expected to formally announce (possibly today) that it is withdrawing the legal guidance distributed to public schools by both the Department of Justice and Department of Education that they are obligated under federal civil rights and education laws to accommodate transgender students in restroom, locker room, and other sex-segregated facilities. Assuming this is true (and Press Secretary Sean Spicer said so in a presser, so there's no reason to believe otherwise) it complicates this legal battle, but to be clear, it doesn't end it. There's some lazy headlines suggesting that the administration is "withdrawing protections" for transgender students, but there's a Supreme Court case in play right now and other court rulings pro and con. Withdrawing the Obama administration's guidance should not be taken to mean that even this one battle has ended. While it is true that the Obama administration has attempted to use executive authorities to push transgender accommodation on all public schools, the idea behind it (transgender protections are included in sex discrimination protections) has precedent in legal decisions that actually go back prior to Obama's presidency. The argument is that discrimination against transgender people counts as sex discrimination on the basis of whether somebody's appearances or mannerisms match "sex stereotypes." A previous Supreme Court decision established that discrimination on the basis of these stereotypes counts as forbidden sex discrimination—you can't discriminate against a woman for being masculine or a man for being feminine. There have been a handful of court cases that have ruled in favor of such positions also applying to transgender people. And when it comes to schools, the argument here by Obama's administration is that Title IX of the Education Amendments of 1972 also requires such a reading. That Title IX actually says nothing about transgender students is relevant. In the case being considered by the Supreme Court, the justices will consider whether a legal concept known as the Auer deference should apply. This is a principle from a Supreme Court precedent that the courts generally give government agencies deference to implement statutes or regulations as they see fit unless they are doing something that directly contradicts what the law states. Assuming the Trump administration does revoke the Department of Justice and Department of Education's guidance to schools, this is naturally going to undercut student Gavin Grimm's case, because the federal government is no longer attempting to implement Title IX this way. But, the Supreme Court is considering more than just agency deference to interpret the law. The court will be considering whether the text of Title IX obligates public schools to accommodate transgender students. If they decide one way or another on Title IX itself, that could possibly bypass the consideration of deference to the administration. So: It's complicated. Resist the urge to assume the case is going down. And even if it did, the Trump administration's position is that states should handle the rules, not that transgender students shouldn't be accommodated. As for what schools should do, I'm on the record as supporting the concept that schools, as long as they're government-run and publicly funded institutions, should be required to accommodate the needs of transgender students. I am perhaps not so strict on what that looks like as perhaps some transgender activists should demand (I think this can be solved by increased body privacy in facilities), and I'm not fond of the manner by which the Obama administration attempted to just push this on school districts while it was still a focus of dispute, which certainly contributed to a cultural backlash. Also of interest to those who were watching the partisan fights over Trump's cabinet nominations play out: According to sou[...]
2017-02-22T14:50:00-05:00Iowa Sen. Mark Chelgren (R–Ottumwa) is a man on a mission to ensure partisan balance at universities in his state, reports The Des Moines Register. Chelgren has introduced Senate File 288, a law that would enact a hiring freeze on Iowan universities until the numbers of registered Republicans and Democrats on faculty fall within 10 percent of each other. "We have an awful lot of taxpayer dollars that go to support these fine universities," he told the Register. Students "should be able to go to their professors, ask opinions, and they should know publicly whether that professor is a Republican or Democrat or no-party affiliation, and therefore they can expect their answers to be given in as honest a way possible. But they should have the ability to ask questions of professors of different political ideologies." Most college faculties lean to the left, according to Heterodox Academy, an organization that aims to encourage diverse viewpoints on campus. Using data obtained by the Higher Education Research Institute (HERI), the group found that about 60 percent of professors held far-left or liberal ideologies as of 2014, while far-right and conservative professors comprise a little above 10 percent. Writing at Heterodox Academy, Sam Abrams noted that professors have been steadily moving to the left. "Between 1995 and 2010, members of the academy went from leaning left to being almost entirely on the left," Abrams observes. "Moderates declined by nearly a quarter and conservatives decreased by nearly a third." Chelgren sees the regulation of Iowan universities' hiring practices as the solution to this problem. "I'm under the understanding that right now they can hire people because of diversity," he said, according to the Register. "They want to have people of different thinking, different processes, different expertise. So this would fall right into category with what existing hiring practices are." Social psychologist Jonathan Haidt, one of the men behind Heterodox Academy, spoke at the 2017 International Students for Liberty Conference last weekend. In his talk he lamented the ideological skew in higher education. Unlike the Iowa lawmaker, though, his solutions do not resort to legislation. Instead, he hopes students will press their universities "to do three things: adopt the Chicago principles on free expression, implement a non-obstruction policy—meaning you can't shut people down. You can protest, you can wave signs, but you can't stop a person from speaking. And finally, please, university, give us some viewpoint diversity." By "the Chicago principles on free expression," he was referring to the University of Chicago philosophy that schools should offer a neutral platform for dialogue and disagreement. Forcing schools to hire individuals based on a political quota probably wouldn't work anyway. As the Register notes, even "Chelgren said professors who want to be hired could simply change their party affiliation to be considered for the position." Colleges and universities should of course strive to incorporate a diversity of thought at their institutions, but mandating that diversity by law is not the answer. [...]
2017-02-22T14:33:00-05:00It's one of those basic laws of economics: when you tax something, you get less of it. Philadelphia is getting a crash course in what that looks like. A little less than two months after the city imposed a new tax on sugary drinks, sales of those beverages are down—way, way down—and revenue collections are too. It's hard to have much sympathy for the city, which probably deserves to come up short on the revenue side as punishment for implementing such an obviously misguided policy. Unfortunately, the soda tax is doing more than just wrecking Mayor Jim Kenney's budget projections—it's also going to cost some Philadelphia residents their jobs. One of the city's largest beverage distributors is planning to cut 20 percent of its workforce, Philly.com reports, and grocery stores across the city are also planning to shed jobs to make up for declining sales. It appears that the tax is causing some shoppers to drive beyond the city's borders in order to do their grocery shopping (who could have seen that coming, right?). "In 30 years of business, there's never been a circumstance in which we've ever had a sales decline of any significant amount," Jeff Brown, chief executive officer of Brown's Super Stores, told Bloomberg. "I would describe the impact as nothing less than devastating." For now, Kenney and other city officials seem unfazed—dismissive, even—of the problems caused by the new tax. A city spokesman told Philly.com that no one knows whether low sales figures and predicted job losses are anything more than "fear-mongering to prevent this from happening in other cities." Kenney put an even finer point on it. "I didn't think it was possible for the soda industry to be any greedier," Kenney said in an emailed statement to Philly.com reporter Julia Terruso. "They are so committed to stopping this tax from spreading to other cities, that they are not only passing the tax they should be paying onto their customer, they are actually willing to threaten working men and women's jobs rather than marginally reduce their seven figure bonuses." It's not the first time Kenney has tried to ignore basic economics when it comes to the soda tax. A few weeks ago, he blamed grocery stores and restaurants for "price gouging" when they increased prices for sugary drinks to make consumers pay for the cost of the tax (the tax is technically applied on the transaction between distributors and retailers, but, like all other taxes, it gets passed along). If Kenney's right, then soda manufacturers and distributors are engaged in a massive conspiracy with grocery stores and eating establishments to lie to city tax collectors, fire workers, and craft a fake narrative about the devastating effects of the Philadelphia soda tax. I suppose that's possible—all those groups did oppose the tax before it was passed, after all—but it seems far more likely that all those groups, and the city itself, are experiencing a first-hand lesson in how economic incentives work. Consumers who don't want to pay an extra 1.5 cents per ounce for their favorite sugary drinks have a strong incentive to avoid buying soda (or juice, or iced tea, or sports drinks) in Philadelphia. They're leaving the city to buy soda, and doing the rest of their grocery shopping outside the city too. That leaves grocery stores with less revenue and creates an incentive to cut costs, which could mean laying off workers. Or, as Pennsylvania State Rep. Stephen Bloom, a Republican, put it on Twitter: Economics is to Politics as Gravity is to Jumping. https://t.co/BuYb7kuIFe — Rep. Stephen Bloom (@RepBloom) February 22, 2017 Philadelphia planned to use the money from the tax to fund a new pre-K program in the city's public schools. That program launched even before the tax went into effect, but revenue projections after the first two months suggest the city might be left with a defi[...]
(image) If there is an unjustified asymmetry between B&Bs and Airbnb rentals, why not relax regulations on the former?
A. Barton Hinkle writes:
Government is frequently a one-way ratchet whose grip grows ever tighter, never looser. The evidence for that premise, already abundant, continues to mount. Take the way Virginia's General Assembly has responded to Airbnb.
A bill to regulate short-term rentals, which mostly means Airbnb, has moved swiftly through the legislature. The measure would let localities create short-term rental registries and require "operators"—i.e., homeowners—to register not once, but every year. They also would have to get an ABC license if they want to serve alcohol to their guests.
The bill's patron, Tommy Norment, represents a tourism-heavy region and has a financial stake in two hotels. He also is co-chairman of the Senate Finance Committee and threatened opponents of the Airbnb bill with an even more Draconian proposal if it didn't pass: a budget amendment creating a state registry and imposing a $500 fine for every day an unregistered property was rented out. (Norment also was instrumental in derailing other legislation in last year's Assembly that took a much more favorable stance toward sharing-economy rentals.) Another measure this year, sponsored by state Sen. Bill Stanley, would have imposed a $10,000 fine on anyone who committed a short-term rental in a locality that forbids them.
The lodging industry supports tighter controls on Airbnb, for the obvious reason. As Del. Chris Peace (R-97th District) put it last year, "They want the government to protect their market share."
2017-02-22T11:50:00-05:00One would think that letting prosecutors know which police officers have histories of misconduct would actually be beneficial to putting criminals behind bars. If prosecutors knew about problems with an officer's history, they'd be better prepared for a possible attack on his or her credibility if it comes up in a courtroom. But in California, thanks to laws that treat police officers' personnel records like sealed secrets, police are able to resist (so far successfully) efforts to let prosecutors know when they've got a potentially dirty officer. The Los Angeles Sheriff's Department put together a list of 300 of its own deputies that have records of misconduct. The union that represents them has so far used the courts to stop the LASD from passing those names along to prosecutors. As the Los Angeles Times notes, this is much bigger than just concealing information from prosecutors. My lede paragraph above is wrong in another way: Because police personnel records and reputations are so thoroughly hidden by law in California, defendants and defense attorneys are far less likely to even know a cop's background to even bring it up in the courtroom. If the Sheriff's Department passes these names along to the prosecutors, they would be duty-bound to inform the defense of any information that could be relevant to the case, like, say, an officer with a record of dishonesty or violence on the job. So this fight to conceal police officer work history is fundamentally a deliberate effort to deprive criminal defendants of potentially important information that could affect the case. Even prosecutors and defenders have to get special court orders to get information from individual police records. The police union complained that revealing the information would "draw unfair scrutiny on deputies whose mistakes might have happened long ago." First of all, that sounds like the kind of thing that a jury should get to decide is still relevant, not law enforcement. Second, man, wouldn't it be great if you or I could make the same argument? But no, how many news stories do we see or read about a person arrested for a crime where the police have passed along to the media the suspect's entire criminal record, including mistakes that might have happened long ago? Right now prosecutors seem to have either informal agreements with police departments to get information about bad officers, or prosecutors find out when officers themselves have been defendants in criminal cases or their behavior shows up in news articles. But several law enforcement agencies, besides the Los Angeles Sheriff's Department are looking to make a more formal arrangement to pass along information to prosecutors. Good for them for at least taking a stab at being more transparent internally about police misconduct. A judge initially ruled that LASD could only pass along the names of problem officers when there's a pending case where they might testify. But even that was too much for the union, who wanted a full hold on the transmission of any names, and this request was granted. The lawyer for the sheriff's department thinks the case might have to go all the way to the state's Supreme Court to be resolved. This should not come as a surprise. The Los Angeles Times had to go all the way to the California Supreme Court to get law enforcement agencies to cough up the names of officers who were involved in shootings. Related, we can head over to Chicago to see what happens when a police officer's lengthy record of misconduct complaints is public, including a case (where he was lead detective) where the city ended up paying $750,000 to man wrongly convicted of murder. The officer was recently promoted to commander! Wait, that's awful. Let's just spin it as proof that California doesn't need to conceal its officers' histories o[...]
2017-02-22T11:35:00-05:00A member of the Texas legislature has proposed a series of bills aimed at curbing sexual assault on college campuses. Some are good, others are bad—and one is uniquely extreme. If approved, they would undoubtedly move Texas to the front of the pack in terms of aggressive anti-rape measures. But they mount an additional challenge to due process on campus, and would even punish completely innocent students and faculty members who fail to notify administrators about a potential assault or act of harassment. State Senator Kirk Watson, a Democrat, filed five campus rape bills earlier this week in response to serious issues at Baylor University, where 31 football players are accused of committing 52 acts of sexual misconduct over a three-year period, according to The Dallas Morning News. He's also a co-sponsor of another measure, put forth by State Senator Joan Huffman, a Republican, that would require members of campus to report sexual harassment and assault to the university president within 48 hours of learning about it. Note that this bill, SB 576, doesn't just apply to victims—it applies to all university employees, as well as "the highest ranking member of a student organization" at any institution of higher learning in the state of Texas who becomes aware of sexual misconduct. It also requires the party with knowledge of sexual misconduct to report the victim's name, address, "and any other pertinent information concerning the incident." This does not apply if the victim wishes such information to remain secret, but let's keep in mind that the third party is only given 48 hours to report the incident. What if a staff member witnesses something he believes could constitute sexual harassment, doesn't know whether the victim wants to remain anonymous, and feels compelled by the law to report? Failing to report would be a Class A misdemeanor: a $4,000 fine and up to a year in jail. This approach is totally unfeasible, for a host of reasons. For one thing, "harassment" is an increasingly murky category of sexual misconduct on campus. Many universities, at the behest of the federal Education Department, define it very broadly—essentially, as any unwelcome conduct of a sexual nature, including jokes and inappropriate remarks that constitute protected expression. The idea that victims and bystanders should be forced to respond to sexual misconduct in a particular way is actually vehemently opposed by many of the most strident anti-rape activists. It's one point of general agreement between due process civil libertarians and Title IX feminists. The Dallas Morning News quoted a Title IX lawyer as predicting that SB 576 "will create a chilling atmosphere on campus for everyone." The other five bills contain a mix of good and bad provisions. One would establish something resembling a "Good Samaritan" law. Good Samaritan provisions grant immunity to people who are fearful of reporting a crime because they themselves could be subjected to some lesser prosecution: i.e., underage drinking. These provisions are a great way to encourage people to help others who are in need of police assistance. Less noble is Watson's bill to make Texas an affirmative consent state. Affirmative consent requires participants in a sexual encounter to receive a "yes" before proceeding—which sounds good in theory but falls apart when scrutinized. Since nonverbal cues are often considered good enough to satisfy the affirmative consent test, the standard always eventually requires college administrators to make intrusive judgment calls about which party was initiating what, whose unconscious signal should count, etc. The Dallas Morning News cites a dubious statistic in defense of these bills: National surveys have proved the pervasiveness of sexual assault, harassment an[...]
(image) If you're a fan of the Ornery Holdout Battling Eminent Domain genre of newspaper writing, you should read Anya Litvak's profile of David Rheinlander in the Pittsburgh Post-Gazette. Here's the lede:
If David Rheinlander believes that his 5.5 acres, which include woods and a modular home, are worth $10 million, then who exactly is the Rover Pipeline or the federal government, for that matter, to say otherwise?
"If they don't like it, go around me," Mr. Rheinlander said less than a week after Energy Transfer Partners, the Texas-based firm developing a massive natural gas pipeline, asked a federal court to condemn a 150-foot-wide line across his Washington County [Pennsylvania] land so it can cut down his trees as soon as possible.
Litvak goes on to describe Rheinlander's early encounters with the company's land agents ("Even during those amicable conversations, the phrase eminent domain was a frequent garnish, he recalled") and the ensuing arguments over safety, property rights, and where the best route for the pipeline would be. My knee-jerk sympathies, as always, are with the holdout. The company claims that it faces "billions of dollars of lost revenue" without the property, which to me suggests they should pay Rheinlander more than the $3,500 they're offering, but I guess they think they've found a legal workaround.
The story also gives us a glimpse of a bigger issue, a dark side of the fracking boom:
The number of eminent domain pipeline cases has risen in proportion to the pace at which pipelines are being built to accommodate the shale gas boom—which is to say, it has ballooned...
Read the whole thing here.
2017-02-22T11:02:00-05:00More states are considering legalizing mid-level dental professionals, known as "dental therapists," who have more training than hygienists but not as much as dentists. Only four states (Alaska, Maine, Minnesota, and Vermont) have legalized the practice so far, but bills to allow dental therapists to work alongside traditional dentists have been introduced in a handful of other states this year, NBC News reported this week. Increasing the supply of trained dental professionals would help expand access to dental care, something that many Americans unfortunately can't take for granted. According to guidelines from the U.S. Department of Health and Human Services, there are thousands of areas in the country experiencing a shortage of basic dental services (defined by the department as an area with more than 5,000 residents per dental provider), mostly in inner cities and sparsely populated rural areas. In Minnesota, dental therapists have helped to address that shortage. As I wrote last year in the Wall Street Journal, dental therapists in Minnesota are helping to address that shortage by expanding existing dental practices and helping more people have access to care. Many of the children who see dental therapist Christy Jo Fogarty at the Minneapolis-based Children's Dental Services have never been to a dentist before because few dentists choose to set up practices in poor areas and only 40 percent of dentists nationally accept patients on Medicaid. This sounds like a win-win, but the American Dental Association, which represents licensed dentists, is worried about the growth of dental therapy, as NBC News highlighted in its piece. "They are licensed, and have taken boards," says Dr. Jane Grover, director of the ADA's Council on Access, Prevention and Interprofessional Relations. "Why wouldn't you want to have dentists treating patients that have high levels of disease?" Grover is right about that last part. Dentists have a higher level of training than dental therapists and are able to treat a wider range of dental issues. Someone with "high levels of disease" absolutely should be treated by a dentist, if not a specialist. That doesn't mean dental therapists are untrained. At the University of Minnesota, getting a master's degree in dental therapy requires 32 months of dedicated course work, taking the same classes as dental students who stay for the full 48-month program. After passing a state exam, dental therapists are authorized to clean teeth, take X-rays, and fill cavities, but they cannot do orthodontic or reconstructive work. Grover is trying to confuse two related, but separate issues. Increasing access for mid-level dental providers actually fixes both. Dental therapists are filling a much-needed gap in the supply of dental professionals who can perform basic treatments, giving more patients access to essential dental care. In turn, that allows dentists to focus on the more serious cases—the people with "high levels of disease" or problems that go beyond cavities. This is really about the ADA trying to block what it sees as unwanted competition from new providers. State-level dental associations have fought dental therapy bills for the same reason. Yet, in reality, this supposed threat of increased competition has resulted in cooperation that's good for both dentists and patients. One dentist in rural Minnesota who I spoke with for the Wall Street Journal piece, John Powers, told me that he was initially skeptical of dental therapists but now employs four of them because being able to treat more patients helps his bottom line. The Federal Trade Commission has urged dental-school accreditors to clear the way for mid-level professionals like therapists, arguing that they can "inc[...]
(image) In today's Wall Street Journal, under the headline "Our Criminal Injustice System," I review Barry Friedman's Unwarranted: Policing Without Permission. Excerpt:
Mr. Friedman, a New York University professor who specializes in constitutional law and policing, is one of the country's most interesting cartographers of the nexus between criminal justice and the citizenry. His previous book, "The Will of the People" (2009), made the provocative and persuasive argument that the Supreme Court rarely gets too far ahead of—or behind—public opinion.
"Unwarranted" posits that the central problem with the status quo is "policing without permission." It's the cellphone stingray towers that gobble up user data on behalf of local police departments. It's the tens of thousands of violent SWAT raids carried out each year to execute drug warrants. It's the unconscionable civil-asset forfeiture rules that allow cops to take money and property from people who haven't even been accused of a crime. All of this is aided by Supreme Court jurisprudence that has turned the Fourth Amendment's strictures on search and seizure into swiss cheese.
The fundamental issue, according to the author, is that Americans lack the tools to comprehend the scope of what's gone wrong. "We don't even think about all these various practices, troubling as they are, as a single phenomenon," Mr. Friedman writes. "It is a complete failure of democratic governance."
It's a very useful and damning book, one that makes the hopeful argument that further democratizing policing rules will lead to better, not worse, constitutional outcomes.
2017-02-22T10:30:00-05:00Yesterday a federal appeals court upheld Maryland's ban on so-called assault weapons, saying ownership of such guns is "not protected by the Second Amendment." The decision, by the U.S. Court of Appeals for the 4th Circuit, overturned a 2016 ruling by a three-judge panel of the same court that said Maryland's law should be subject to "strict scrutiny" because it imposes a "substantial burden" on the right to keep and bear arms. Maryland's "assault weapon" ban, which it expanded after the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, bans the sale or transfer of 81 listed gun models, along with "their copies," plus all semiautomatic centerfire rifles that accept detachable magazines and have two or more of these features: a folding stock, a grenade/flare launcher, or a flash suppressor. The law also bans the sale or transfer of magazines than can hold more than 10 rounds. Violators (buyers as well as sellers) can go to prison for up to three years. The question at the heart of the case, Kolbe v. Hogan, is whether the guns and magazines that Maryland banned qualify as "dangerous and unusual weapons," which the Supreme Court has indicated are outside the scope of the Second Amendment. That category, the Court said in the landmark Second Amendment case District of Columbia v. Heller, includes "weapons that are most useful in military service—M-16 rifles and the like." By contrast, weapons "in common use for lawful purposes" are included in the constitutional right to armed self-defense. In Kolbe, the 10-judge majority concludes that the guns and magazines covered by Maryland's ban are "dangerous and unusual" because they are "exceptionally lethal weapons of war" that are not appropriate for civilian use: "We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are 'like' 'M-16 rifles'—'weapons that are most useful in military service'—which the Heller Court singled out as being beyond the Second Amendment's reach." The four dissenters, by contrast, note that "assault weapons" and "large-capacity magazines" are indisputably "in common use for lawful purposes," since they are owned by millions of law-abiding Americans: "As long as the weapon chosen is one commonly possessed by the American people for lawful purposes—and the rifles at issue here most certainly are—the state has very little say about whether its citizens should keep it in their homes for protection." Contrary to the majority's assertion that the guns Maryland banned are similar to the M-16, none of them is capable of automatic fire. The majority's judgment that folding stocks, flare launchers, and flash suppressors make rifles "exceptionally lethal" is dubious. It is also irrelevant, because the Supreme Court did not say the Second Amendment allows bans on exceptionally lethal weapons. It said the Second Amendment allows bans on "dangerous and unusual" weapons that are not "in common use for lawful purposes," and that description plainly does not apply to rifles that are among the most popular in the country. The argument that magazines capable of holding more than 10 rounds are more lethal than smaller magazines is more logical but still irrelevant, since "large-capacity magazines" are very common, sold standard with many handguns and rifles. Despite the apparent conflict with Heller (and with McDonald v. Chicago, which extended Heller's logic to state and local governments), the Supreme Court so far has not agreed to review any decisions dealing with "assault weapon" bans. In addition to the 4th Circuit, two other federal appeals courts—the D.C. Circuit and the 7th Circuit—have upheld su[...]
(image) Robert Redford says an Office of Management and Budget memo suggesting the Trump administration might try to eliminate the National Endowment for the Arts (NEA) is "another example of our democracy being threatened." The actor, director, and independent-film booster explains that "arts are essential" because "they describe and critique our society."
Democracy probably would survive the demise of the NEA, which was created in 1965 and accounts for a tiny share of arts funding in the United States. But by the same token, notes Jacob Sullum, getting rid of the NEA would have a negligible impact on federal spending, and there are strong reasons to doubt that the president's commitment to fiscal restraint goes beyond such gestures.
2017-02-22T09:40:00-05:00Political correctness frequently manifests itself when authority figures decide certain forms of expression are likely to offend delicate sensibilities and therefore must be curbed. That appears to be the spirit behind the Carroll County Public Schools' (Md.) decision to order the removal of posters depicting women of different ethnicities and religions from the classrooms of Westminster High School. Some teachers had hung the posters in support of "diversity," but school administrators decided the posters amounted to political advocacy on behalf of the teachers, the Carroll County Times reports. Carey Gaddis, a district spokesperson, told the Huffington Post that after receiving "at least one" complaint from a school staffer, teachers were asked to remove the posters "because they were being perceived as anti-Trump by the administration." Gaddis says the school district doesn't allow for political posters in the classroom unless "both sides" are represented. At first blush, the posters don't scream partisan politics. There is no mention of President Donald Trump or any political entity anywhere on the posters, the only words read, "We the People-Defend Dignity." However, the posters are political, at least according to their creator, Shepard Fairey—the street artist behind the iconic Barack Obama "Hope" image. Fairey told the Washington Post that thousands of prints of his "We the People" images were produced specifically to be used in protests against the Trump administration, and also told the Los Angeles Times, "It makes it easier for people who are afraid to express their point of view because they think they are out of step with the dominant ideology." This creates an interesting conundrum. If a teacher had hung a poster reading "Support Our Troops," would that be a political act requiring a "No War" poster to ensure both sides are represented? Would the "We the People" posters be acceptable if they were placed beside a "Build the Wall" poster? Some Westminster High students and alumni have found a clever way to get the message of the posters into their school without the approval of the administration, through a crowdfunding campaign to re-produce the posters' imagery on t-shirts. Gaddis confirmed to the Carroll County Times that students will be permitted to wear the shirts to school and that teachers have the right to contribute to the campaign on their own time, but per district policy will not be allowed to wear the shirts in the classroom. It's reasonable that to expect public school teachers to not explicitly stump for political candidates or causes in the classroom, but politics can be inferred in almost any social statement. If equal time is required for every viewpoint expressed on a poster (take environmentalism, for example), or if public schools must be made safe spaces from any form of expression with even a tangential political point of view, that could potentially create more problems than it solves. [...]
(image) The media rarely fabricate anything, but they are blind to their biases.
John Stossel writes:
At ABC News, my colleagues acted as if I was the only guy in the building with an opinion. Everyone else was "in the middle." This was nonsense. Almost all were leftists.
They constantly pushed big government. Their bias was revealed in questions they asked, the "experts" they chose to interview and their endless calls for political correctness and new regulation.
Unfortunately, Trump is now just as ridiculous, claiming that "crime is reaching record levels" when it's half what it was 25 years ago. He claimed, "We had a very smooth rollout of the travel ban," and that he had "the biggest electoral college win since Reagan," and so on.
This is absurd. Facts are facts. Trump shouldn't make things up.
The Oak Knoll School in Menlo Park, California, brought the Free-Range Kids Project—an optional, free, outside-the-classroom activity—to its K–5 students in 2014. Adapted from an assignment created by New York City public school sixth grade teacher Joanna Drusin, the rules were simple: Think of something you feel ready to do without an adult that, for one reason or another, you just haven't gotten around to yet. It could be walking the dog. Riding your bike to the park. Getting out of bed without making Mom beg. If their parents agree, the kids get cracking. At Oak Knoll, where the theme that year just happened to be "confidence," about a third of the 700 students (and their parents) signed on.
The results were shocking, writes Lenore Skenazy. One little letting-go was all it took and poof! The joy crowded out the fear. For family after family, it was the same story, according to surveys Oak Knoll had parents and students fill out. One mom said it was "a lightbulb experience." Another called it "life changing."
2017-02-22T08:00:00-05:00Last week the U.S. Court of Appeals for the 11th Circuit overturned a censorious Florida law that tried to stop doctors from pestering their patients about guns, sacrificing the First Amendment in the name of protecting the Second. Such laws, which the National Rifle Association supports, show how fake rights—in this case, an overbroad understanding of the right to armed self-defense—endanger real ones. Florida's Firearm Owners' Privacy Act, enacted in 2011, was a response to complaints that pediatricians and family practitioners had become excessively nosy about guns in the homes of their patients. The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians encourage their members to ask parents about guns, treating them as hazards analogous to alcohol, swimming pools, and poisonous household chemicals. Sometimes gun owners object to such inquiries, especially if they seem to be colored by a moralistic anti-gun ideology. The 11th Circuit's decision describes half a dozen examples that influenced Florida's legislators: A pediatrician in Ocala had reportedly told a mother that she would have to find a new physician for her child due to her refusal to disclose information about firearm ownership in the family home. A state representative said that his daughter's pediatrician inquired if he owned a firearm, and then asked him to remove the firearm from the home. An email described how a mother "was separated from her children while medical personnel...interrogated" them about firearm ownership and put information about such ownership in their medical records. One doctor refused to treat a child because he wanted to know if there were firearms in the home. A patient, according to a state senator, was told that disclosing firearm ownership was a Medicaid requirement. And another patient was informed that Medicaid does not pay for care if patients refuse to answer firearm-ownership questions. A representative of the National Rifle Association reported that a child would not be examined if the parent refused to answer questions about firearms in the home. Assuming these accounts are accurate, the behavior of these doctors may have been unreasonable or even (when they misrepresented Medicaid requirements) unethical. But their requests for information about guns were not unconstitutional, since the Second Amendment applies only to the government. The law passed in response to these anecdotes nevertheless purported to protect the Second Amendment rights of Floridians by regulating what doctors say to their patients. As the 11th Circuit notes, that makes no sense (citations omitted, emphasis added): There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right. So, as the district court aptly noted, there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies [the law's] speaker-focused and conten[...]
(image) Officials at Rutgers, the State University of New Jersey, have apologized to students they blocked from attending a job fair because the students were wearing blue or light gray suits or non-white shirts. The university dress code for the event said that suits should only be dark gray or black and shirts should be white. Some of the students turned away said they wore the only suit they own.
2017-02-22T00:01:00-05:00One spring evening in 2014, Charles Collins, a 67-year-old black Milwaukee resident, was driving back home with his wife. They had just dropped off their grandchild at their son's house after a day of babysitting. "We were returning home, driving along, talking, just having a great interaction. You know, wife and husband, kicking it," Collins recalls. "Out of nowhere a policeman pulled up behind us with lights on." When the Milwaukee police officer approached Collins and asked for his license, Collins handed it over and asked if there was any problem with his car of if he'd been speeding. "We're not the ticket police," the officer replied, according to Collins. The officer noticed Collin's concealed handgun license and asked him if he had any weapons in the car. When Collins said no, the officer went back to his cruiser, returned a short while later, handed Collins' license back, and let them go. The officer never said why he pulled Collins over. The husband and wife drove away, stunned and confused. Although not too confused. The same thing had happened to Collins several times over the years, just as it had to his son and many of his friends, both young and old. "As a brother or black man living in Milwaukee, it's not an unusual thing," Collin says. "When I leave my home, I leave with apprehension. Not that it's in your face, but it's there. I feel there's a good possibility that I'll get shot or pulled over. It's in me, you know what I'm saying? I can feel it." Now Collins is one of the lead plaintiffs in a federal class-action lawsuit the American Civil Liberties Union is filing against the Milwaukee Police Department for operating what it says is an unconstitutional and racially discriminatory stop-and-frisk program. The ACLU lawsuit, to be filed early Wednesday morning, alleges the Milwaukee Police Department subjects city residents like Collins to high-volume, suspicionless stops and searches as part of a quota system, violating their Fourth and Fourteenth Amendment rights. "The named plaintiffs' experiences of being stopped, frisked, and searched by MPD officers without legal justification are far from isolated incidents," the lawsuit says, according to a copy obtained by Reason. "They are the result of the MPD's high-volume, suspicionless stop-andfrisk program, which violates both the Fourth Amendment prohibition on unreasonable searches and seizures and the prohibition against racial and ethnic profiling under the Fourteenth Amendment and Title VI of the Civil Rights Act." While police officers have the authority to pull someone over if they have reasonable suspicion of criminal activity, "the problem arises when officers are stopping someone for no good reason, which is exactly what's happening in many instances in Milwaukee," ACLU attorney Jason Williamson says in an interview. "All the plaintiffs in this case were going about their daily lives, visiting friends, driving home from a relative's house. To have that life disrupted by the police for no good reason is traumatic and illegal." Milwaukee Police Chief Ed Flynn, who has led the department since 2008, is a steadfast disciple of the "broken windows" theory of policing—the idea that heavy police presence in a community, combined with proactive enforcement of low-level nuisance crimes, will deter more serious crimes. The theory gained prominence, and notoriety, in New York City in the early '90s, where it was embraced by city officials and loathed in m[...]
"Free movement of people and goods across borders are incredibly important things. And Trump is not into either of those things"—Katherine Mangu-Ward.
At the 10th annual International Students for Liberty Conference, Reason magazine Editor in Chief Katherine Mangu-Ward, former editor and longtime head of the Institute for Humane Studies Marty Zupan, and I discussed the history and future of Reason and libertarianism in President Donald Trump's America.
We each talked about the signature issues of the decades we were at the magazine's helm (the 1980s for Zupan, the '00s for me, and currently for Mangu-Ward) and whether libertarianism is waxing or waning.
This podcast was recorded live on Friday, February 17. Now finishing up its first decade, SFL reported that about 1,700 guests from all over the world attended this year's conference.
Produced by Mark McDaniel.
Subscribe to the Reason podcast at iTunes or click below to listen right now!
src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/308691066&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&visual=true" width="100%" height="450" frameborder="0">
Don't miss a single Reason podcast! Subscribe, rate, and review!
Subscribe to the print edition for just $15 a year!
2017-02-21T17:01:00-05:00"Top secrecy is translated into public participation and responsibility by the magic flexibility of the controlled news leak." —Marshall McLuhan The first time anyone ever leaked a story to me, way back in the 1990s, he declared himself a whistleblower. That was one of the first words out of his mouth: "whistleblower." And the word fit. He was phoning to tell me about something his boss had done that was at least arguably improper. He didn't mention it, but it didn't take much digging to discern that my anonymous source had a hidden motive too. He had been passed over for a promotion, and he was pissed about it. One lesson here is that leakers don't always have noble motives. A second is that you can have shady motives and still reveal a legitimate story. Deep Throat didn't leak information about the Watergate investigation to Bob Woodward because Richard Nixon's crimes offended him. He was a high-ranking FBI guy with his own history of trampling the Constitution, and his leaks were part of a complex game of bureaucratic warfare. Nonetheless, they exposed significant facts. But the biggest lesson in my little tale is that leaks are a standard part of how modern government works. I was an obscure reporter; my informant was an obscure bureaucrat. This wasn't Woodward-and-Bernstein stuff. But the informal rules and rituals of the leaking game were accessible to us too. The back channel to the press was an established part of the political process, and it had been for a long time. Tyler Cowen makes that point well in a column at Bloomberg today: Sometimes governments trade leaked information to reporters, to curry favor. Other times leaks are used to hurt rivals within the public sphere, or a leak can serve as a trial balloon to test the popularity of an idea. Leaks also may help a president's Cabinet members build up their own internal empires, which can boost a president's agenda. Or the American government may want to inform its people about, say, drone operations in Yemen, but without having to answer questions about the details. In this regard, leaks may substitute for more direct congressional oversight, to the benefit of the executive. In other words, leaks are part of how the government manages the press and maintains its own popularity. A leak can get a story onto the front page, or if the first leak did not create the right impression, the information flow can be massaged by yet another leak. Any war on leakers therefore involves a certain degree of institutionalized hypocrisy. The Obama administration tried to crack down on the leaks it couldn't control, but that doesn't mean it stopped leaking info itself. Cowen quotes Obama's chief of staff, William Daley: "I'm all for leaking when it's organized." Where I part company with Cowen is when he writes this: [W]hy haven't American governments worked harder to prosecute unwelcome leaks and leakers? Well, if that policy were pursued successfully, the only leaks that would occur would be "approved" or government-intended leaks, and everyone would figure this out. The government could no longer use leaks as a way of providing information or making threats in a distanced manner with plausible deniability. While that's true, it may be beside the point, because I'm not sure it's actually possible to pursue that policy successfully. Eradicating unwelcome leaks would be an enormous task. Millions of federal employee[...]
2017-02-21T16:45:00-05:00Mike Pence met with Ukraine President Petro Poroshenko while making his first trip to Europe as vice president, with his office saying he had "underscored U.S. support" for Ukraine's territorial integrity and that the U.S. would continue to not recognize Russia's 2014 annexation of Crimea. He also called on Russia to implement the Minsk protocol, a 2014 ceasefire deal between Ukraine, Russia, and two breakaway republics in eastern Ukraine that have been supported by Russian armed forces—the U.S. was not a party to the Minsk protocol. Meanwhile, The New York Times reports on back-channel efforts at resolving the Ukrainian situation, involving President Trump's personal lawyer, a business associate, Paul Manafort, and a Ukrainian legislator, Andrey Artemenko, who proposes Russian withdrawal from eastern Ukraine in exchange for a 50 or 100 year lease of Crimea to Russia. Poroshenko, who Artemenko accuses of corruption, says the lawmaker is not authorized to present "alternative peace plans." The 1994 Budapest Memorandum, a political agreement signed on to by Ukraine, Russia, the United States, and the United Kingdom concerning Ukraine's surrender of its Soviet era nuclear arsenal in exchange for commitments to its sovereignty and territorial integrity and protection from nuclear strike. China and France, the world's other nuclear powers, signed separate understandings. The agreement, not a legal documented, is not interpreted to compel military action. Russia insisted it did not violate the terms because, it argued, the Ukrainian government, which replaced the pro-Russian one topped in a 2015 pro-Europe revolution, was not the same state with which it made a deal, a spurious argument particularly given that Russia assumed many of the treaty obligations of the Soviet Union and so is familiar with the concept of continuity in international law. While the U.S. condemned Russia's actions in 2015, and imposed limited sanctions, Russia oversaw a referendum in Crimea it said approved of the territory, which belonged to the Russian Soviet Socialist Republic until Nikita Khrushchev transferred it to the Ukrainian S.S.R. in the 1950s, being annexed by Russia, and Russian control over the region, which houses a Russian naval base, has remained since then. Allegations over ties between President Trump's associates, including Michael Flynn, who resigned as national security advisor after a controversy over what he said about sanctions in a call with the Russian ambassador to the U.S. before Trump took office, color any attempt at a de-escalation in tensions between Russia and the U.S. Yet the Flynn affair illustrates how improbable "collusion" between the Trump team and Russia is. In recent years, the U.S. has been caught spying on the communications of its allies—surely Russia knows its officials are spied on to. If Flynn, who was paid $40,000 to attend a Russia Today dinner, were an access point for the Kremlin into the White House, why would they blow their load prematurely on an exploratory call about sanctions? What difference would three weeks make? 2016 represented the third consecutive election where the American electorate rejected the anti-Russian candidate. During the 2008 election, Russia invaded the former Soviet republic of Georgia, causing then Republican presidential nominee Sen. John McCain (R-Ariz.), now an early leading critic of T[...]
(image) Is it safe for you to return to Sweden? That's the question an American friend asked Johan Norberg this weekend after President Donald Trump warned an audience in Melbourne, Florida, about Muslim immigrants and terrorism in Europe. "You look at what happened last night in Sweden" the president yelled, "Sweden! Who would believe this!"
Trump later took to Twitter to admit that he was not referring to something that happened in Sweden last night, but something that happened on Fox News last night. Tucker Carlson had interviewed Ami Horowitz about a documentary claiming that Muslim refugees were the cause of an "incredible surge in violence" in Sweden.
But as Johan Norberg explains, that documentary, and the Fox News segment based on it, are nothing but fake news. Here are the facts about immigrants, refugees, and crime in Sweden.
2017-02-21T15:30:00-05:00The world was running out of oil and the global economy was about to collapse as a consequence ten years ago. Imminent peak oil doom was everywhere and one of its leading proponents was banker Matthew Simmons. Among other things, Simmons based his prognostications on the claim that oil production in Saudi Arabia was about to peak and fall steeply, presaging an era of permanent global oil shortages. Simmons further suggested that global oil production had peaked in 2005 and would fall at a rate of 5 percent year thereafter. To be fair, Simmons like most peak oilists fuzzied up his numbers and timelines enabling him to be vague about just what level Saudi production would achieve before beginning its inevitable decline. For example, one of the analysts over at peakist The Oil Drum site declared in 2009 that Saudi production had peaked at 9.6 million barrels per day in 2005 and projected that it would fall to around 7 million barrels per day by now. Simmons was a bit more canny and suggested that if Saudis worked really hard to boost production, they might briefly get to 12.5 million barrels per day. Even so, Simmons' main assertion in his book Twilight in the Desert was: "My research has convinced me it is unlikely that Saudi Arabia could sustain any higher oil output than it now produces, and that even the current production rate may be too high." Simmons was sufficiently confident of his predictions that he took New York Times columnist John Tierney up on a bet in 2005 for $5,000 that the global price of oil would exceed an average of $200 per barrel in 2010. He lost. So what did happen to Saudi Arabian production? According to Bloomberg News, Saudi production reached 10.7 million barrels per day in November and, as part of an agreed Organization of Petroleum Exporting Countries' (OPEC) cut in production, dropped back to 10.5 millon barrels last month. World oil production in 2005 - when it supposedly peaked - averaged 85 million barrels per day. The global average stood at over 97.2 million barrels per day in 2016. Of course, the peak oilers also failed to see the shale oil and gas revolution made possible by fracking and horizontal drilling that boosted U.S. oil production from 5.2 million barrels per day in 2005 to nearly 9 million barrels per day today. If the OPEC production cuts don't hold, some analysts see oil prices falling back toward $30 per barrel later this year. [...]
(image) Michigan State University will prohibit students from hanging whiteboards on their dorm room doors beginning in the fall.
That's because some people write offensive messages on them, and the university wants to take an even more proactive approach to fighting harassment.
Apparently, instances of students writing hate speech on other students' whiteboards have become more frequent.
"The functionality of whiteboards used to outweigh the downsides," Kat Cooper, a university spokesperson, told The Detroit Free Press. "That's not happening anymore."
Maybe students don't need to write on each other's whiteboards—they can just text. But if that's the case, why not just let whiteboards be optional? If a student doesn't find them useful, or is worried about offensive messages, he can take his down.
No, no—they all must come down. There's too great a danger of someone saying something that someone else doesn't like, according to administrators. The Free Press's article details the numerous strategies MSU deploys to prevent such an occurrence:
The university also has an anti-discrimination policy.
Staff, including resident assistants inside buildings, file reports with MSU's Office of Institutional Equity when they come upon offensive language on whiteboards. That office investigates the issues when reported, through the people who write the offending words or images are rarely identified.
"Any student found in violation of the university's Anti-Discrimination Policy can face sanctions ranging from a warning to suspension," Ande Durojaiye, director of Office of Institutional Equity, wrote in an e-mail.
Here's a theory: maybe the behavior of MSU students isn't worsening—maybe people aren't suddenly more prone to engage in harassment. Rather, the university has defined harassment in increasingly subjective terms, and encouraged members of campus to report each other anonymously. Students aren't abusing the whiteboards: administrators are abusing the students' free expression rights.
In such an environment, I'm sure it makes more sense for MSU to simply shut everyone up.