The Colorado Bureau of Investigation (CBI) says it has found that former CBI forensic scientist Yvonne "Missy" Woods manipulated data in the DNA testing process or posted incomplete test results in hundreds of cases. The CBI says it has found 652 cases affected by Woods' work between 2008 and 2023, when she was placed on administrative leave and then retired. It is currently reviewing her cases from 1994 to 2008. The CBI says it has not found any evidence that Woods falsified data, but it says she cut corners and did not follow standard protocols, leaving the reliability of her work in question, and deleted or altered data to conceal her actions.
The post Brickbat: Science Doesn't Lie, but Scientists Do appeared first on Reason.com.
]]>After the U.S. Supreme Court upheld the right to bear arms in 2022, several states simultaneously made it easier to obtain carry permits and much harder to use them. Once they could no longer require a "special need" before allowing residents to carry guns in public for self-defense, politicians in those states worried that residents would start exercising that right. Deeming that outcome intolerable, legislators banned guns from long lists of "sensitive" locations, making it highly impractical for people to legally carry guns outside their homes even after obtaining the requisite license.
In contrast with "may issue" states like New York, New Jersey, Maryland, California, and Hawaii, where licensing officials had wide discretion to deny carry permits prior to the Supreme Court's ruling in New York State Rifle & Pistol Association v. Bruen, Colorado already was a "shall issue" state, meaning residents could obtain permits as long as they met specific, objective criteria. Colorado legislators nevertheless are taking a page from New York et al. by proposing broad restrictions on where permit holders may carry guns.
Senate Bill 24-131, introduced last month, would ban guns from "sensitive places" such as parks, playgrounds, recreation facilities, zoos, museums, libraries, "public gathering[s]," medical facilities, banks, stadiums, amusement parks, bars, pot shops, college campuses, and houses of worship (without "express permission"). Violating these restrictions would be a misdemeanor punishable by a maximum $250 fine, rising to $1,000 for subsequent offenses. While the bill is still in the early stages of consideration, Colorado Newsline notes that "Democrats hold a majority in both chambers" of the state legislature and "can easily pass their legislative priorities."
State Sen. Sonya Jaquez Lewis (D–Longmont), who introduced the bill in her chamber along with Sen. Chris Kolker (D–Centennial), says it is "just common sense," because "we really need to have a designation of where it's OK to have a firearm and where it's not." Kolker likewise invokes "common sense," saying, "I am sponsoring this bill because my constituents are tired of thoughts and prayers in response to gun violence."
Since Democrats frequently criticize Republicans who oppose stricter gun control for offering nothing but "thoughts and prayers" after mass shootings, the implication is that S.B. 24-131 would help prevent such crimes. But that expectation is highly implausible, since mass murderers are unlikely to be deterred by laws that notionally create gun-free zones. School shootings, for example, happen in settings where firearms already are prohibited under state and federal law.
"Five out of six mass shooters choose 'gun-free zones,' and the bill creates many more of them," David B. Kopel, a gun policy expert at Colorado's Independence Institute, notes in written testimony against S.B. 24-131. That estimate is based on a 2018 Washington Post analysis of mass public shootings from 2009 through 2016, which found that 86 percent happened in gun-free zones. "The bill creates many safe zones where criminals can attack without risk of armed citizens being able to fight back," Kopel says.
What about "gun violence" more generally? "Even the leading anti-gun expert witness nationally states that the 2003 Concealed Carry Act [which created the state's current licensing system] reduced violent crime in Colorado by 1.2%," Kopel says. He is referring to a 2017 study in which Stanford law professor John J. Donohue and two co-authors reported that the "effect" of Colorado's right-to-carry law on the "violent crime rate" 10 years after it was enacted was "−1.2%."
S.B. 24-131 specifically targets permit holders, since anyone who carries a concealed handgun in public is already breaking the law unless he is licensed to do so. Kopel notes that Coloradans with carry permits "are far more law-abiding than the general population." He says they are "39 times less likely to be arrested than someone without a carry permit." That calculation is based on the number of permits revoked because of arrests in 2020. Kopel adds that "data from other states are similar," indicating that "persons with a license to carry are very highly law-abiding compared to persons without permits."
In contrast with the dubious public safety benefits of S.B. 24-131, its impact on the right to armed self-defense in public affirmed by Bruen would be substantial. Notably, the bill applies to "adjacent parking areas" as well as the "sensitive" locations themselves. It makes an exception for "firearms stored in locked containers in vehicles." But on its face, that seems to mean a carry permit holder who visits, say, a bar, a museum, or a government office would already be violating the law when he pulls into the parking lot unless he had previously locked up his gun, which he would have to do in a location that is not deemed "sensitive."
Kopel describes the bill as "ridiculously overbroad." For example, he says, "it bans licensed carry from the entire parking lot of a shopping mall" if the mall contains a single "tavern" or "one small branch bank." He also notes that "a woman who goes jogging or walking in parks in early mornings would be prevented from defending herself." More generally, he says, the bill "guarantees that violent attackers will be safe from the danger of being shot by armed citizens, as long as the attackers choose to attack in the locations specified in the bill."
A similar California law, currently on hold thanks to a preliminary injunction that the U.S. Court of Appeals for the 9th Circuit allowed to take effect in January, likewise classifies banks as a "sensitive" location. The plaintiffs in that case, Carralero v. Bonta, noted that the state "provided no evidence of a single bank robbery or other crime at a bank committed by a CCW permit holder." According to the state's reply brief, that is irrelevant, because "the Supreme Court has never suggested that sensitive places restrictions must be limited to those locations where there have been crimes committed by a concealed carry license holder."
Given that "there is no instance of a licensed handgun carrier committing a crime at a bank" in "the entire history of the United States," Kopel wonders, "what is the logic" of "imposing a prohibition, over-riding the decisions of many banks? What is the logic of prohibiting self-defense in every inch of a shopping mall parking lot just because the mall includes one small branch bank?"
Under Bruen, in any case, courts cannot uphold a gun control law by weighing its purported public safety benefits against its restrictions on Second Amendment rights. The government has the burden of showing that a law is "consistent with this Nation's historical tradition of firearm regulation."
Courts applying that test to location-specific gun bans have reached varying conclusions. But federal judges in California, Hawaii, Maryland, New Jersey, and New York have deemed at least some of those restrictions unconstitutional under Bruen. And even the U.S. Court of Appeals for the 2nd Circuit, which in December upheld several of New York's "sensitive location" restrictions, rejected the state's default rule against guns in all businesses open to the public unless the owner posts "clear and conspicuous signage" allowing them or "has otherwise given express consent."
That provision "functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners' Second Amendment rights," the unanimous 2nd Circuit panel said. "That burden is entirely out of step with that imposed by the proffered analogues, which appear to have created a presumption against carriage only on private property not open to the public."
The Colorado bill, unlike California's law, does not include a sweeping rule like that. But the cumulative burden of its restrictions would pose a serious obstacle for permit holders who want to carry guns for self-defense in many quotidian contexts.
Given Democratic control of the state legislature, Colorado Newsline says, "the most effective opposition to any gun law reforms will likely come from groups that challenge the legislation in court" under Bruen. Jaquez Lewis is unfazed by that prospect.
The senator notes that resolution of Carralero v. Bonta "could take another one or two years." Although S.B. 24-131 claims its restrictions are "consistent with the second amendment," its supporters think waiting to see whether the 9th Circuit agrees would be reckless. "We didn't want to wait two years," Jaquez Lewis says, "because we know how many incidents of gun violence occur in Colorado in one year—way too many." Given the mismatch between that problem and her proposed solution, the logic is hard to follow.
The post This Colorado Bill Would Abolish the Right to Armed Self-Defense in Many 'Sensitive Places' appeared first on Reason.com.
]]>On Hinge, the basic text prompts where users share information about themselves are an unmitigated hellscape.
"All sex is choke sex when you're being strangled by the invisible hand of capitalism," read one profile I came across. The app offers a surprisingly large number of men who like to do yoga in the nude. A different man holds up a picture of himself with a "world's smallest cock" mug and yet didn't bother to post a picture of the adorable rooster. Things aren't much better once you open a chat: I recently asked a man in his 40s what he liked about Spain and he replied simply, "Chicas."
These are relatively tame examples. Unfortunately, some people deal with dangerous and aggressive users on dating apps, and lawmakers are taking note. But however terrible online dating may be, government intervention isn't the answer: The problem is the users, not the apps.
A bill recently introduced in Colorado aims to make dating apps such as Hinge and Bumble safer for users. The first section of S.B. 24-011 would force all dating services with any users in Colorado to submit an annual report to Colorado's attorney general about misconduct reports from users in the state or about users in the state. If that isn't available, the app must report all misconduct reports from the entire United States. These reports would all become public.
While the bill leaves some of the details up to the state's attorney general, this would probably mean that when people file false reports about each other on dating apps, the reports would all become public record. The bill uses the term "information about a member," suggesting that it would require disclosure about each individual member. Scorned lovers, racists, incels, and others with hostile motives could file false reports and harm people's job and dating prospects in the future. And a report on a government website looks a lot more legitimate than someone mad on social media. These reports might even lead to law enforcement investigating innocent users.
If you file a report against an ex to get back with them, that would be filed with the attorney general and become public record. And if a racist files a false report against every person of color, that could come up when future employers research those people. I also research dates prior to going out with them less as a matter of safety than the fact that a lot of men who have asked me on a date turned out to be married. But if I was unaware of how the law required disclosure, I might be dissuaded from dating a man if I saw this come up in his search results before even clicking on the link.
Like trying Tinder before using Hinge, the prior version of the bill was somehow even worse. It would have changed Colorado law to allow a dating service user injured by another member to sue the dating service if a report was ever filed with the dating service prior to the incident. It doesn't matter if the two people didn't meet on the app, and it doesn't even matter if the misconduct report is true. The report only has to be filed before the "incident." That means that even if the user is suspended and had connected with another user before the report was filed, if they harm that user, the app would still have been liable.
A spokesman for Democratic Gov. Jared Polis said that "the Governor believes in a free and open internet and that decisions about how people interact on social media are up to the individual, not the government."
At a time when many elected officials are seeking to blame platforms for the behavior of users, Polis offers a different approach. "Whether you meet a potential date at a bar, dance club, coffee shop, or online it is important to take safety seriously," the spokesman explained. "The Governor appreciates the sponsors' willingness to make changes to the bill that removed any private right of action and will allow dating sites to continue to be available to Coloradans." Polis' office did not comment on any of my abysmal dating stories.
Dating apps are horrible because they have horrible users—like the man who brought me to a cafeteria, drank a beverage that he packed for himself without asking me if I wanted one, grilled me for 15 minutes, and ghosted. (I later learned he was 14 years older than he claimed and Hinge had repeatedly banned him. He's tried to match with me three times more since that day.)
The Colorado bill would not help keep users safe but harm their future dating and employment prospects, often without reason. This is the wrong approach.
The post Dating Apps Are Horrible. A Colorado Bill Would Make Them Worse. appeared first on Reason.com.
]]>The New York Times and Atlantic writer Jerusalem Demsas both recently published articles on how the YIMBY ("Yes in my backyard") movement has cut across ideological and partisan lines in an era where such divisions have engulfed most other policy issues. The Times headline calls it "The Surprising Left-Right Alliance That Wants More Apartments in Suburbs":
For years, the Yimbytown conference was an ideologically safe space where liberal young professionals could talk to other liberal young professionals about the particular problems of cities with a lot of liberal young professionals: not enough bike lanes and transit, too many restrictive zoning laws….
But the vibes and crowd were surprisingly different at this year's meeting, which was held at the University of Texas at Austin in February. In addition to vegan lunches and name tags with preferred pronouns, the conference included — even celebrated — a group that had until recently been unwelcome: red-state Republicans.
The first day featured a speech on changing zoning laws by Greg Gianforte, the Republican governor of Montana, who last year signed a housing package that YIMBYs now refer to as "the Montana Miracle…."
Day 2 kicked off with a panel on solutions to Texas's rising housing costs. One of the speakers was a Republican legislator in Texas who, in addition to being an advocate for loosening land-use regulations, has pushed for a near-total ban on abortions.
Anyone who missed these discussions might have instead gone to the panel on bipartisanship where Republican housing reformers from Arizona and Montana talked with a Democratic state senator from Vermont. Or noticed the list of sponsors that, in addition to foundations like Open Philanthropy and Arnold Ventures, included conservative and libertarian organizations like the Mercatus Center, the American Enterprise Institute and the Pacific Legal Foundation.
Demsas makes similar points:
Over the past four years, as the affordability crisis has worsened, the YIMBYs have gained ground. In conservative Montana, an anti-California message spurred lawmakers into passing pro-development bills; in Washington State, ambitious proposals were passed in the name of affordability and racial equity. But members face pressure on both sides to abandon ship. How long can they hold on?
One reason the YIMBY movement has remained bipartisan is that it's decentralized. But the gang gets together periodically for a national conference amusingly called "YIMBYtown"—the rare place where you might find socialists, centrist economists, and Trump-supporting elected officials all in the same room, working toward the same goal.
I have been writing about cross-ideological agreement on this issue for years. Housing deregulation is a cause that unites a wide range of economists and land-use experts across the political spectrum. Thus, I—a libertarian property rights scholar—end up in the same boat with liberals like Richard Kahlenberg and Paul Krugman, and conservatives at the National Review.
Prominent political advocates of zoning reform include Virginia Republican Governor Glenn Youngkin and Colorado Democratic Governor Jared Polis. Gov. Polis captured the broad appeal of housing deregulation well, when he said recently that "[i]t's a solution to housing costs that embraces our individual property rights…. The fact that it's meeting a real need that people from the left to right, the center, no matter where they are politically, want to do something about high housing costs is really what makes it even more salient."
In a forthcoming Texas Law Review article, Josh Braver and I explain why the constitutional case against exclusionary zoning can also cut across ideological lines. I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause of the Fifth Amendment.
Of course, the opposing side in this debate—the NIMBY ("Not in My Backyard") forces—also cuts across ideological lines. It includes left-wingers suspicious of capitalism and development, and right-wingers—including Donald Trump—who play on fears that deregulation will lead more poor people and minorities to move to white suburban neighborhoods. There are also many NIMBYs who believe—contrary to basic economics—that allowing developers build more housing will actually drive up costs rather than increase them. Others who fear that it will reduce property values and change the "character" of their neighborhoods. For some progressive homeowners in the latter camp, narrow self-interest trumps ideology. In reality, many existing homeowners have much to gain from housing deregulation, especially if they have children. But many either don't know that, are highly risk-averse, or both.
If I had to speculate on what really unites YIMBYs across the political spectrum, and divides them from their opponents, I would suggest that one big factor is that YIMBYs generally understand Economics 101 and apply it to housing issues. They know that increasing supply by allowing more construction reduces costs, and thereby also increases the availability of homes—especially to the poor and disadvantaged. NIMBYs, by contrast, tend to ignore or deny this.
More generally, YIMBYs are less likely than NIMBYs to see the economy as a zero-sum game where some people can only gain at the expense of others. Thus, they recognize that letting developers build more housing and letting more people "move to opportunity" benefits not only the developers and migrants themselves, but also the rest of society, which has much to gain from the resulting boost to productivity and innovation. Zero-sum thinking is at the root of many political divides, and likely plays a significant role here, as well.
I don't claim zero-sum thinking and economic ignorance are the only factors at work. As I've emphasized before, you can be a highly knowledgeable, logically consistent NIMBY if you are highly risk-averse and elevate preservation of the current "character" of your neighborhood over such concerns as protecting property rights, creating opportunity for the poor, and increasing growth and innovation. But NIMBYism would be a far less powerful political force if it were limited to people who think that way.
You can also reach NIMBY conclusions if you endorse complex "market failure" theories, which essentially hold that Econ 101 doesn't apply to housing. But then you would need to confront overwhelming evidence indicating that areas with little or no zoning (most notably Houston) have far more affordable housing, even in periods when demand goes up, because many people want to move there.
For the moment, YIMBYism remains a valuable cross-ideological coalition, one that has managed to score some important successes, despite also suffering some setbacks. Whether it can continue to defy the forces of polarization remains to be seen.
The post Cross-Ideological YIMBY Coalition Defies Increasing Polarization—So Far appeared first on Reason.com.
]]>Like most of the Mountain West, Colorado experienced an explosion in housing prices during COVID-19. Housing affordability in the state went from bad to worse.
In response, the Colorado Legislature last year considered a major housing reform bill, championed by Gov. Jared Polis, that would have allowed smaller, multi-unit developments in single-family neighborhoods, and required larger cities to eliminate barriers to apartments near transit, amongst other reforms. It ultimately died in the state Senate.
Undeterred, Polis and state housing reformers are reviving many of these same reforms, and a few more, in a series of separate bills.
In a phone interview with Reason last week, Polis talked about his approach to housing affordability, why last year's omnibus reform bill failed, whether this year's bills will get over the finish line, and whether we should abolish zoning entirely.
Q: In his State of the Union address, President Joe Biden briefly mentioned high housing costs. His proposals for bringing them down mostly included tax credits for homebuyers. What should be the federal role in housing affordability?
A: The federal piece is very limited. In Colorado, the biggest barrier to housing is simply the permitting associated with being allowed to build it and other costly government-imposed restrictions from the local and state levels. We're always happy to have any help federally, but fundamentally, the core of the issue is local and state.
I would add that the single biggest federal dimension is interest rates. To reduce interest rates, the federal government has several levers. One is monetary policy. One is proactive trade policy and free trade deals with more countries to reduce upward pressures on consumer costs. The third is establishing a bipartisan fiscal commission around the fiscal stability of the country. Because even sending that market signal that they're serious about fiscal reform will bring down interest rates. Whether they succeed or not is another story.
Obviously, we welcome any additional policies that on the edges help. But fundamentally, this is an issue of allowing more housing to be built near job centers and where people want to live.
Q: If you turn the clock back a decade, the only people talking about zoning reform were some weirdos in the San Francisco Bay Area. Now, zoning reform is a major issue everywhere. How did you become invested in this issue? Does the salience surprise you?
A: On whether the salience of it now surprises me, it's really become more of a crisis because of the increasing cost of housing. That's why I think you saw this issue first raised in areas that had high housing costs 10 to 15 years ago. And because Colorado is such a great place to live, we're getting there. The average home price is now $600,000 in the Denver metro area. It could be $1 million in five or ten years if we don't allow more housing to be built to keep up with the demand.
Q: Last year, Colorado had a big housing bill taking on many dimensions of zoning and permitting reform. It didn't make it over the finish line. What are some lessons you learned from last year's failed effort?
A: Sometimes an omnibus is easier to get through. Sometimes a number of separate bills are easier to get through because they allow for separate, distinct, and overlapping coalitions.
The omnibus bill would have been a big step forward for affordability in our state. It passed our State House and ultimately died on the calendar in the State Senate.
Now, we have worked with legislators of both parties. We have a number of bills that will end government-imposed parking requirements, end government-imposed occupancy limits [which restrict how many unrelated people can live together], allow accessory dwelling units by right, establish the ability to build more housing in transit-oriented communities near bus and rail, and really look at the ability to remove red tape and bureaucracy associated with housing being built.
It's a comprehensive approach, a number of different bills. They all have broad support.
Q: If you could snap your fingers and have one bill appear on your desk right now, is there one in particular you're most excited about?
A: No, we need all. You need all the above. There's no one silver bullet on housing. There are so many different kinds of barriers that exist. For instance, we found that the government has used parking requirements above and beyond what the market wants. Those add to the cost of housing and discourage housing construction. Parking requirements add $10,000 to $30,000 to the cost of a unit.
Accessory dwelling units are another example. There are places you can build them, of course, in our state. But you might have to fight City Hall to do it. And you might have to not only have the energy to do it but also tens of thousands [of dollars] of legal fees to do it, and years of delays. We want to make that easier as a basic property right.
Of course, those are inherently the most affordable types of units for rent in the future. We also want to make it easier to subdivide [lots] and sell so people can buy equity in the most inherently affordable kind of housing where the infrastructure, utilities, and water already exists.
Q: You mentioned property rights there, which obviously for us at Reason is a good selling point. How effective do you find that argument in Colorado—that zoning reform is about giving property owners more rights over their land?
A: First and foremost, it's about the pain point with the public, which is housing costs. It's a solution to housing costs that embraces our individual property rights. It's very effective on principle with those who agree with personal property rights.
The fact that it's meeting a real need that people from the left to right, the center, no matter where they are politically, want to do something about high housing costs is really what makes it even more salient.
Q: Colorado is considering a bill that would require local governments to allow more dense housing near transit. States like California have passed a lot of legislation telling local governments to allow more density. They're constantly having to go back and fight with the local governments to follow state law. Are you worried something like that will happen in Colorado? How do you bring local governments on board?
A: First of all, the piece of transit we're addressing is inherently inter-jurisdictional. In our Denver metropolitan area, we might have 30 different jurisdictions, even more. You might live in one and travel across six others to get to work and stop in another.
We have many different small to medium-sized towns in the suburbs around Denver. We have six different counties in the metropolitan area. To be able to have an inter-jurisdictional transit system that works, you need to have a development overlay that allows for housing and development in [areas] near transit availability.
Q: Should we abolish zoning completely?
A: I would say no.
There's a legitimate individual property claim if your neighbor's property interferes with yours. We take the classic example of your neighbor trying to build a 50-story skyrise in your single-family neighborhood and putting your house and property in the shade all day and obstructing your view completely.
I would say that's a legitimate property claim about how your neighbor's activities affect you. When you get to these things like accessory dwellings, duplexes, and triplexes, I don't think you have a legitimate claim as an adjacent property owner that somehow what they're doing affects your property.
But these things are all really important to discuss. I think the vast majority of people—obviously, your readership, but really on the left and the right, everybody—would agree that at some point what you do affects your neighbors and there are other things that you can do that clearly don't affect your neighbors and are your property right.
Where you draw that line is the philosophical question that people are trying to solve. I think we've defined [the line] too far in the direction of your nosy neighbors rather than your own property rights.
Q: Is there anything else I should have asked, or anything else you'd want to say?
A: I'm very optimistic that this constellation of several bills [in the Colorado Legislature] will help significantly reduce costs and remove barriers to home construction in our state. The fact that demand is high means our state's doing well. People want to live here, but the artificial constraints on supply are the reason that the costs have gone up and we're seeking to chip away at those and make housing more affordable.
This interview has been condensed and edited for style and clarity.
The post <em>Rent Free</em> Q&A: Jared Polis appeared first on Reason.com.
]]>A 78-year-old woman whose home was mistakenly raided by a Denver SWAT team will now receive a nearly $3.8 million payout. The large sum comes as a result of a 2020 Colorado law that banned qualified immunity protections for police officers in the state, making civil rights lawsuits against police significantly more likely to succeed.
On January 4th, 2022, Ruby Johnson, a retired postal worker, was sitting in her Denver home when she heard a police airhorn loudly commanding that she leave her home with her hands up. Johnson, who had recently showered and was only wearing a bathrobe, left her house to find a Denver SWAT team gathered outside her door.
The SWAT team had been sent to Johnson's home as part of an effort to recover a vehicle that had been stolen the previous day. According to Johnson's lawsuit, the stolen car had an iPhone inside, and the Find My app feature indicated that the phone was near Johnson's house.
While the police officers had obtained a warrant to search Johnson's home, they did so using an affidavit that allegedly provided "false characterization" of how reliable the Find My app is, overstating how sure the police could be that the iPhone—and the truck—would be at Johnson's house.
According to Johnson's lawsuit, after receiving this warrant, the SWAT team aggressively searched her home, causing considerable damage to her belongings. Making matters worse, even though Johnson gave police her garage door opener and told them how to enter the garage's front door, police used a battering ram to enter the garage, destroying the door and door frame. Ultimately, the SWAT team found no sign of the truck or any other criminal activity. The officers left and later told Johnson's children that the department wouldn't pay Johnson for the considerable damage caused to her home.
Johnson filed a lawsuit with the American Civil Liberties Union (ACLU) of Colorado in December 2022, alleging that the search was unlawful under the Colorado Constitution.
"Officers combed through Ms. Johnson's home for hours and found no evidence of anything even remotely connected to any criminal activity. The illegal search succeeded only in leaving the innocent Ms. Johnson traumatized," the complaint states. "Ms. Johnson's privacy, sense of safety, and peace in her home have been shattered since her house became the scene of a militarized criminal investigation. This illegal search has destroyed Ms. Johnson's sense of safety and security in the home that has been her castle for forty years."
On Monday, the ACLU of Colorado announced that Johnson had been awarded $3.76 million, including $1.26 million in compensatory damages and $2.5 million in punitive damages. In a press release, the ACLU largely credited the passage of a 2020 law that revoked police qualified immunity protections—which typically prevent law enforcement from being sued for Constitutional violations—for the victory.
"This is a small step toward justice for Ms. Johnson, but it is a critical case under our state's Constitution, for the first time affirming that police can be held accountable for invading someone's home without probable cause," Tim Macdonald, ACLU of Colorado Legal Director said on Monday. "The ACLU worked hard in the summer of 2020, with lots of other stakeholders, to create a right to sue for violations of the state Constitution."
The post 78-Year-Old Grandmother Awarded $3.8 Million After Illegal SWAT Raid appeared first on Reason.com.
]]>It has been just over four and a half years since police in Aurora, Colorado, violently detained Elijah McClain, who had committed no crime, after a teenage 911 caller reported he "look[ed] sketchy" as he walked home from a convenience store in August 2019. The encounter, which originally flew under the radar, epitomized the sort of hyperactive, abusive policing that people of varying political persuasions could admit was excessive as the U.S. engaged in a national debate about the broader subject in 2020. And the cursory internal investigation—if you can call it that—into McClain's death embodied the government's not-so-subtle tendency to insulate itself from transparency and accountability at the expense of the people who pay their salaries.
But all these years later, accountability is finally coming. And the results are, to put it mildly, a bit weird, raising potentially uncomfortable questions about what justice should look like in similar cases of abuse.
Peter Cichuniec on Friday was sentenced to five years in prison. But Cichuniec was not the officer who first physically accosted McClain within 10 seconds of exiting a patrol car, despite that no crime had been reported and that McClain had no weapon. That was Nathan Woodyard. Nor was Cichuniec one of the two officers who joined Woodyard shortly thereafter, helping him forcibly subdue and arrest McClain, notwithstanding the fact that they had not met the constitutionally required standard to do so. Those were Jason Rosenblatt and Randy Roedema.
Cichuniec, who didn't arrive until about 11 minutes later, was the lead paramedic, ultimately administering too large a dose of a sedative after miscalculating McClain's size and hearing from police that McClain was allegedly experiencing "excited delirium," a potentially dubious syndrome characterized by severe distress, agitation, and sudden death. While it remains unclear what exactly caused McClain to go into cardiac arrest, an amended autopsy attributes McClain's death to "complications of ketamine administration following forcible restraint." For Cichuniec's error, which occurred in rapidly changing, chaotic circumstances, he will spend significantly more time in prison than any of the officers, without whom Cichuniec would never have been called in the first place.
Woodyard, who initiated the encounter and violated department policy by applying two carotid holds—where blood flow to the brain is cut off by applying pressure to both sides of the neck—was found not guilty of manslaughter and criminally negligent homicide. (He has since returned to work with $200,000 in back pay.) Rosenblatt was also acquitted. Roedema, the senior officer on the scene, was convicted of criminally negligent homicide and third-degree assault and sentenced to 14 months in jail.
As Reason's Jacob Sullum wrote previously, McClain died from a smorgasbord of constitutional violations, laid out exhaustively in a 157-page report released in 2021 by an independent panel appointed by the Aurora City Council.
Did Woodyard meet the Fourth Amendment bar to conduct an investigatory stop of McClain? No, the panel concluded, as it "did not appear to be supported by any officer's reasonable suspicion that Mr. McClain was engaged in criminal activity." Was law enforcement justified next in frisking McClain, which is legally permissible only if they reasonably suspect the person is armed? No, the panel concluded, as Woodyard himself admitted he felt safe approaching because McClain "didn't have any weapons." And did police meet the constitutional threshold to escalate the encounter to an arrest, which requires probable cause that a crime has been committed? No, the panel concluded, as "the only facts that had changed were Mr. McClain's attempt and stated intention to keep walking in the direction he had been going and his 'tensing up.'" (In 2021, the city of Aurora authorized a $15 million settlement with McClain's family. Good.)
When Woodyard first approached McClain, he had earbuds in and appeared to not hear Woodyard's commands. He was wearing a ski mask, sweat pants, a jacket, and a knit cap, which makes sense when considering he had anemia, a condition that causes coldness in the extremities. Those were the circumstances—along with the teenage 911 call—that ultimately led police to feel justified in forcibly accosting McClain, who was 5'7″ and 140 pounds, so much so that he vomited profusely into his ski mask.
Cichuniec was convicted of criminally negligent homicide and second-degree assault, with a sentencing enhancement for causing serious injury or death. His five-year sentence is the mandatory minimum prescribed by Colorado law. At trial, prosecutors argued he and Jeremy Cooper—the other paramedic on scene who was convicted of criminally negligent homicide and will be sentenced later—failed to do their due diligence in monitoring McClain after giving him the ketamine. The defense countered that the two men were unaware McClain had already been the subject of two carotid holds and that he had vomited multiple times since—important information when evaluating ketamine use, which can further restrict breathing.
It can certainly be true that Cichuniec made an egregious professional misjudgment. And it can also be true that punishing him criminally for it makes little sense, particularly in the context of a criminal justice reform conversation that has, often rightfully, emphasized that prison should be reserved for people who actively present a danger to society. That those two things may feel painful to reconcile does not actually make them irreconcilable.
So is Cichuniec actively a danger? While his error—which appeared to be an honest one, no matter how catastrophic—very well may have contributed to McClain's demise, it is difficult to make the argument that he still poses a threat to the public. There are, after all, different forms of accountability outside of prison walls. Fire him? Of course. Bring a civil suit? Ideally. Imprison him for the next five years? I fail to see who, exactly, that makes safer.
At the close of one of the criminal trials involving McClain's death, the jury heard a refrain often touted by criminal justice reformers. It came from an unlikely source. "Just because there's a tragedy does not mean there's criminality," said one of Roedema's lawyers during closing arguments. Readers can view the body camera footage and decide for themselves if that applies to the officers.
But, at least when it comes to Cichuniec, the distinction between tragedy and criminality is correct. Elijah McClain didn't deserve to die. That's a fact. And it doesn't change the reality that putting Cichuniec in prison only serves to undermine what this same movement has often fought against: overbroad, ham-fisted prosecution. For that to mean anything, society shouldn't be sending people to prison because the political moment seems to demand it—no matter how unsympathetic the defendant.
The post A Paramedic Got 5 Years in Prison for Elijah McClain's Death. That's Not Justice. appeared first on Reason.com.
]]>Officials in Aurora, Colorado, have agreed to pay $1.9 million to settle a lawsuit brought by Brittney Gilliam, her daughter, her sister, and her two nieces. In 2020, the five were pulled out of their SUV at gunpoint and handcuffed. Police said their computer system showed the SUV was stolen, but in fact, it was a motorcycle with the same license plate number from Montana that had been stolen. Local prosecutors called the incident "unacceptable and preventable" but declined to charge the officers.
The post Brickbat: You Can Never Be Too Careful appeared first on Reason.com.
]]>Judging from last week's oral arguments in Trump v. Anderson, the Supreme Court will reject the claim that he is disqualified from running for president under Section 3 of the 14th Amendment because he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. The only real question is which of several possible rationales will attract a majority of the justices.
Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, says: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
In December, the Colorado Supreme Court ruled that Section 3 barred Trump from that state's presidential primary ballot. But the issue of how to interpret and apply Section 3 in the context of a presidential election raises a bunch of questions that courts had not previously addressed. The one that attracted the most attention during Thursday's oral arguments was whether states have the authority to enforce Section 3.
Justices Clarence Thomas and Brett Kavanaugh emphasized the lack of historical evidence that states can independently apply Section 3. Jason Murray, the lawyer representing the Colorado voters who challenged Trump's inclusion on the ballot, said he could offer just one example: In 1868, John H. Christy was elected as a Georgia congressman, but Rufus Bullock, the state's Republican governor, concluded that Christy was disqualified under Section 3 and instead certified his opponent, John Wimpy, as the winner. A House committee later found that Wimpy also was disqualified because he had served in the Confederate army, and neither man was seated.
Murray said "it's not surprising that there are few examples" because the election process was different back then: Since voters either cast a ballot for a party or wrote in a candidate's name, "there wouldn't have been a process for determining before an election whether a candidate was qualified." But Thomas was unsatisfied with that explanation. Since "there were a plethora of Confederates still around" in the 1870s, he said, there should "at least be a few examples of national candidates being disqualified if your reading is correct."
Kavanaugh echoed Thomas' point, noting that the power Colorado is asserting had been "dormant for 155 years." The year after the 14th Amendment was ratified, he noted, Chief Justice Salmon P. Chase, acting as the circuit justice for Virginia, ruled that Section 3 had to be implemented via the congressional action authorized by Section 5 of the 14th Amendment. That means "Congress has the authority here, not the states," Kavanaugh said. And in 1870, Congress approved the Enforcement Act, which aimed to implement the 14th Amendment by protecting voting rights. "There's no history contrary in that period," Kavanaugh said, and "as Justice Thomas pointed out, there's no history contrary in all the years leading up to this of states exercising such authority." That suggests, he said, "a settled understanding" that Chase "was essentially right."
Chief Justice John Roberts noted that "the whole point of the 14th Amendment was to restrict state power." The amendment says states may not "abridge the privileges or immunities of citizens," "deprive any person of life, liberty, or property, without due process of law," or deny anyone "the equal protection of the laws." And Section 5 says "Congress shall have the power to enforce this article by appropriate legislation." Given the wording and aims of the 14th Amendment, Roberts said, "wouldn't that be the last place that you'd look for authorization for the states, including Confederate states" to regulate "the presidential election process" by deciding which candidates are disqualified under Section 3? That position, he suggested, is "at war with the whole thrust of the 14th Amendment and very ahistorical."
Justice Elena Kagan also was uncomfortable with the idea that "a single state should decide who gets to be president of the United States." The question of "whether a former president is disqualified for insurrection to be president again," she said, "sounds awfully national to me," which suggests that "whatever means there are to enforce it" would "have to be federal, national means."
Justice Amy Coney Barrett shared Kagan's concern. "You say that we have to review Colorado's factual record with 'clear error' as the standard of review," she told Murray. "So we would be stuck….We're stuck with that record." The deference that approach would require, Barrett said, underlines "this point that Justice Kagan was making" that "it just doesn't seem like a state call."
Similarly, Justice Samuel Alito worried about "a cascading effect" in which "the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country." Roberts raised the possibility that "a goodly number of states" might decide to reject Democratic as well as Republican candidates, meaning that "it'll come down to just a handful of states that are going to decide the presidential election," which is "a pretty daunting consequence."
Justice Ketanji Brown Jackson wondered whether the presidency qualifies as "an office…under the United States" within the meaning of Section 3. In the part of Section 3 that refers to offices from which insurrectionists are barred, Justice Ketanji Brown Jackson noted, "you have a list, and 'president' is not on it." She suggested it was unlikely that the Framers would have "smuggled" that "high and significant and important office" via a "catch-all phrase." Regarding the question of which prior office holders are covered by Section 3, Justice Neil Gorsuch noted that Article II charges the president with commissioning "all the Officers of the United States," which suggests that category does not include the president.*
By contrast, the question of whether the January 6 riot qualified as an "insurrection" and whether Trump "engaged in" it barely came up. "For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence," Jonathan Mitchell, the lawyer representing Trump, said in response to a question from Jackson. "This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection as that term is used in Section 3."
Murray, by contrast, opened his argument by placing Trump at the center of an insurrection. "We are here because, for the first time since the War of 1812, our nation's Capitol came under violent assault," he said. "For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office."
But that was pretty much it on the subject, aside from Kavanaugh's allusion to the fact that Trump, despite facing numerous criminal charges, was never charged with insurrection under 18 USC 2383. In addition to a possible prison sentence of up to 10 years, a conviction under that statute makes the defendant "incapable of holding any office under the United States." If the concern is that "insurrectionists should not be able to hold federal office," Kavanaugh told Murray, "there is a tool to ensure that that does not happen—namely, federal prosecution of insurrectionists."
*CORRECTION: This paragraph has been revised to clarify the parts of Section 3 that Jackson and Gorsuch were discussing.
The post SCOTUS Is Troubled by the Claim That States Can Disqualify Trump From the Election As an Insurrectionist appeared first on Reason.com.
]]>A bill in Colorado would have required that pet owners pay to register each and every one of their furry or scaly friends with the state. While the bill was thankfully withdrawn, the meddlesome sentiment among lawmakers is not new.
House Bill 1163, sponsored by Rep. Regina English (D–Colorado Springs), would have required the state Commissioner of Agriculture to "develop, implement, and maintain an online pet animal registration system" by July 1, 2025. Colorado pet owners would then be required to register each of their pets with the state at a cost of up to $8.50 apiece, or $16 for dogs or cats that are not spayed or neutered. Pet parents would also have to "designate a caregiver" for their animals in the event of an emergency; any animals without a designated caregiver would cost $25 per year.
The bill defines "pet animal" to include cats, dogs, hamsters, gerbils, fish, rodents, reptiles, and "any other species of wild or domestic or hybrid animal six months of age or older, that is sold, transferred, or retained for the purpose of being kept as a household pet."
At a minimum, the database would be required to capture the name, address, email address, and cell phone number of both the pet owner and the designated caregiver, as well as the name, age, and breed of each pet and whether the pet is dangerous.
According to the bill's text, the database would function like a next-of-kin notification, in which first responders could "locate and contact the caregiver" if a pet owner is killed or incapacitated.
But it's not clear that such an intrusion into pet owners' personal lives is warranted, or necessary.
After all, police handle next-of-kin notifications for human beings without requiring a centralized state database. While pets are an important part of many people's lives, it's the owner's responsibility to provide for their care in the event of an emergency. For example, many vendors offer "In Case of Emergency" stickers that not only tell emergency responders how many animals are inside but also provide an emergency contact number.
The pricing structure of the Colorado database is onerous as well. The law defines "pet animal" so broadly as to include any animal except livestock. One child with a pet hamster would cost their parents $8.50 per year. But what happens if the hamster gives birth? One hamster litter can contain a dozen or more "pups"—would the owners then have to pay the state an additional $102 and register a close friend's contact information when the hamsters hit six months old?
While the Colorado bill is dead—English told a local news outlet that she had withdrawn the legislation—many cities and counties already require pet registration.
Denver, for example, requires residents to register all dogs or cats over six months old. Fulton County, Georgia, which contains part of Atlanta, also requires owners to register their dogs and cats, as does Maricopa County, Arizona. Los Angeles, on the other hand, requires the registration of dogs and horses.
Proponents argue that registration provides a benefit for both animals and their owners—for example, allowing animal control officers to quickly determine how to reunite a lost dog or cat with its family. But a collar tag serves the exact same purpose, only costs a few dollars, and doesn't require you to give any information to a state agency.
Considering that many jurisdictions—including the ones mentioned above—require you to display a license tag on the pet's collar, it's not clear what function the license serves that a $5 tag from PetSmart wouldn't accomplish just as well. Besides, pets are routinely microchipped, allowing a veterinarian to quickly find contact information for a lost pet's owner.
Local governments are within their rights to ensure, for example, that dogs are vaccinated against rabies, a deadly communicable disease that can spread to both animals and humans. And it makes sense to task wildlife or animal control officers with policing dangerous animals—pets or otherwise—that could harm people or their pets.
But otherwise, short of extreme cases of abuse and neglect, general everyday pet care is the purview of a pet's owner, not the state or local government. While undoubtedly drafted with good intentions, the Colorado bill, like the others from around the country, represented an unnecessary state intrusion into pet owners' lives.
The post Bill Would Have Required Coloradans To Register Their Pets, at $8.50 Each appeared first on Reason.com.
]]>The media's eyes might be on the results coming out of the Iowa caucus, but readers of Rent Free will know that the real news (housing news) is happening elsewhere. This week's stories include:
But first, our lead story, which neatly illustrates in real time how zoning destroys shelter.
Two tenants in Claremont, New Hampshire, are being kicked out of their homes of a decade following a decision by the town's Zoning Board of Adjustment.
Since last summer, Claremont city officials have said that the tenants' two units were divided in violation of the zoning code and that they must be recombined into one apartment. Earlier this month, the zoning board shot down owner Zander Kempf's request for a variance that would have legalized the units and allowed the tenants to stay.
"We have a major housing crisis and a severe shortage of housing around the state and in Claremont," Kempf, a real estate investor who owns the apartments through the Claremont Fund, LLC, tells Reason. "By the city's request, we have to kick two tenants out who have been there for many, many years and who've called it their home."
The Mystery Unit
Kempf's 15,000-square foot property sports three roughly 100-year-old buildings with 13 units between. They long predate Claremont's zoning code, which only allows three units on the property.
The city accepts 12 of those units as legal but non-conforming units. That leaves a 13th unit, which appears and then disappears from city documents.
Some 1994 tax documents list the property as having 13 units, but a more recent certificate of occupancy shows only 12, according to a Claremont Planning Department report.
Kempf tells Reason that the property, which he purchased in 2020, was marketed as having 13 units, while tax documents described it as having only 12. Calls to the city's planning department during the purchasing process didn't produce any information about outstanding issues, he says.
But in July 2023, a routine fire safety inspection by the city discovered that what they thought was a three-unit building actually had four units in it.
It appears that a three-bedroom apartment had been subdivided into two one-bedroom apartments of around 500 square feet each. It's unclear when that additional unit was added, or by whom. There's also no record of any building permits having been pulled for the creation of the fourth unit, which is illegal under state law.
The additional unit also poses a zoning code problem, because non-conforming properties aren't allowed to be made more non-conforming. That means adding a 13th unit on a property zoned for three units is a no-go, regardless of whether it has building permits or not.
Failed Appeal
After it was discovered, Kempf tells Reason that he tried to legalize the 13th unit administratively with the city's planning department. The department, however, told him he either needed to recombine the two units into one apartment or ask the zoning board for a variance.
In November, Kempf applied for a zoning variance. At a zoning board meeting this month, his lawyer argued that allowing the 13th unit would only maintain the status quo on the property, and not create additional, negative impacts for anyone.
The board was unmoved.
"We are in a housing crunch, but that doesn't mean we can bend our codes to meet that," said Todd Russel, who chairs the zoning board, according to reporting from the local Eagle Times. "To me, public safety and public interest isn't about one tenant, and it's not about the financial loss of losing a rental unit. It's more about keeping everybody safe in the area."
The board voted to reject Kempf's application. He could appeal to the city council or local superior court but was told doing so wouldn't alter the result by his lawyer.
"The planning board has their discretion to decide these things. Our counsel didn't think there was much legal basis for [an appeal], although a moral and practical argument could certainly be made," he says.
That means his two tenants will now have to find somewhere else to live.
The U.S. Supreme Court is taking a break from guns and abortion to take up two cases that could deliver some incredibly consequential rulings for property rights, housing production, and homelessness.
Sheetz v. County of El Dorado
Last Tuesday, the court heard oral arguments in the case of Sheetz v. El Dorado County. Petitioner George Sheetz, a California retiree, is challenging the constitutionality of a $23,000 traffic impact fee El Dorado County is demanding he pay for a permit allowing him to place a manufactured home on a single-family-zoned lot.
Sheetz's lawsuit argues the county's impact fee is an "unconstitutional condition" because it charges him for impacts he's not creating.
The county has argued that questions of unconstitutional conditions only apply to decisions made by individual bureaucrats. Since Sheetz's impact fee is set by legislation, it is exempt from challenges under this unconstitutional conditions doctrine.
California courts have thus far sided with the county. Tuesday's oral arguments suggest things could go Sheetz's way. Justice Neil Gorsuch said there was "radical agreement" that legislative exactions are still covered by the unconstitutional conditions doctrine.
Pacific Legal Foundation Attorney Brian Hodges tells Reason that Gorsuch's comments suggest the court could issue a narrow ruling definitively holding that legislative exactions can create unconstitutional conditions.
There's a smaller chance, he says, that the court could go further and declare that legislative exactions attached to building permits have to meet the same standards as bureaucratic exactions and bear an "essential nexus" and "rough proportionality" to the actual impacts of the permitted building.
Such a ruling would open up legal challenges to all sorts of legislative exactions known to suppress housing supply, including other impact fees charged to builders and even inclusionary zoning laws that require builders to offer some of their new units at discounted (often-money losing) rates.
To be sure, the Sheetz case only asks the Supreme Court whether legislative exactions are subject to unconstitutional conditions claims. The court isn't being asked to establish a standard for legislative exactions.
The court's liberal justices also expressed concern that requiring legislative exactions to have some sort of "rough proportionality" to actual impacts of individual properties would effectively prevent governments from imposing all generally applicable impact fees.
City of Grants Pass v. Johnson
On Friday, the Supreme Court agreed to hear City of Grants Pass v. Johnson, a case that deals with local governments' abilities to fine and jail the homeless for sleeping on public property.
This case stems from a 2018 decision by the U.S. Court of Appeals for the Ninth Circuit in the case Martin v. Boise, which ruled that cities' enforcement of camping bans against the homeless when alternate forms of shelter aren't available violates the Eighth Amendment's ban of cruel and unusual punishment.
Shortly after the Martin decision came down, homeless individuals in Grants Pass, Oregon, sued the city for enforcing a camping ban in public parks while not providing any shelter to the homeless. A Ninth Circuit panel ruled against the city, and the full circuit declined to rehear the case. Grants Pass petitioned the Supreme Court to hear the case in August.
Grants Pass, backed by amicus briefs from Gov. Gavin Newsom and the free-market Goldwater Institute, argues that the Martin decision "paralyzes" cities trying to protect public safety and address homelessness.
Homeless advocates had urged the Supreme Court not to take up the Grants Pass case, given the lack of a circuit split. They are now urging the Court to uphold the Martin decision.
"Cities that have failed to provide for the basic needs of their residents, like housing and shelter, should not be allowed to punish people when they have no safe place to go," said Jesse Rabinowitz of the National Homelessness Law Center in an emailed statement.
Last year, housing supply-siders in Colorado, Arizona, and New York went for broke on big, bold housing bills that tried to squeeze through the entire "yes in my backyard" (YIMBY) agenda in one fell swoop. They all failed.
This year, housing is still a top issue in all three states, but housing supply-siders are forswearing omnibus bills in favor of smaller, more focused reforms.
New York
New York Gov. Kathy Hochul's 2023 State of the State policy platform called for a far-reaching "housing compact" that would require cities to upzone or else forfeit their powers to approve or deny new housing to the state.
The governor's 2024 housing proposals are far more modest. She's called for renewing tax credits for mixed-income housing projects, legalizing illegal "basement units" in New York City, and lifting state-set residential density restrictions in Manhattan.
Colorado
Last year, Colorado Gov. Jared Polis' office put together an expansive housing omnibus bill legalizing "middle housing" and accessory dwelling units, upzoning transit corridors, and requiring cities to plan for housing growth.
This year, housing is still on the governor's mind. He referred to the issue as his "Roman Empire" in his State of the State address last week. (For those who missed the meme, that means he thinks about it every day.)
But housing activists in the state tell Reason there will be no attempt at another big, omnibus bill this year. Instead, one-off bills legalizing ADUs, upzoning transit corridors, paring back parking minimums, legalizing single-stair apartments, and requiring more proactive, pro-growth planning on cities' parts will be introduced.
Arizona
It's the same story in Arizona. In 2023, the Legislature there considered a wide-ranging bill sponsored by Sen. Steve Kaiser (R–Phoenix) that would have allowed housing in commercial zones, legalized four-unit "middle housing" in single-family areas, limited hearings on new housing projects, and preempted local design and minimum lot size rules that foil starter homes.
That bill likewise failed and its champion, Kaiser, is now out of the legislature. Bills incorporating some of the reforms of last year's omnibus are set to be reintroduced, but there will be no unified pro-supply push.
Changing Tactics
The changing focus to smaller bills reflects lessons learned from last year's failed efforts.
In a big housing bill, there's "one thing that could sour a legislator," says Courtney LeVinus from the Arizona Multifamily Association. "Instead of an omnibus, we're going to focus on our niche areas."
Single-subject bills also allow lawmakers to advocate for their bills more effectively, says Johnathan Pira, an activist with YIMBY Denver.
Colorado's housing omnibus bill last year had three chief sponsors who were responsible for explaining every provision of a huge, sprawling bill and addressing all concerns about it to other legislators. That was a big lift. Dividing up the omnibus bill into single-subject legislation means more legislators can focus on explaining and advocating for smaller, more manageable reforms, says Pira.
The states that passed the most reforms last year, Washington and Montana, did so via smaller, one-off bills. (The one exception might be Oregon, which passed a bill overhauling its entire state-wide planning system.)
Nevertheless, smaller bills can also be read as a sign of smaller ambitions. Hochul's single-issue reforms add up to a lot less than what her housing compact would have accomplished. Not every element on Arizona and Colorado's omnibus bills is likely to be reconsidered this year.
This year's bet is that one is higher than zero and that more focused bills that actually pass will add up to more housing than a super-ambitious mega-reform that goes down in flames.
A common argument against upzoning is that it doesn't actually improve housing affordability. Instead, increasing the allowable developmental capacity of land increases land values, which then gets tacked on to the costs of new housing. A new paper authored by Emily Hamilton at George Mason University's Mercatus Center finds evidence to the contrary.
Hamilton's paper looked at the results of two rounds of reform in Houston, Texas, that shrank the city's minimum lot size to 1,400 square feet—an effective upzoning in the famously unzoned city. Past papers have found that Houston's minimum lot size reform increased housing supply significantly. Hamilton's paper finds that land values stayed flat, or even decreased as a result of the reforms.
"In a case where upzoning leads to a large amount of newly built space, the effect on reduced rents may be equal to or greater than the value of the right to build more on a given piece of land," writes Hamilton.
It's possible upzoning single parcels in heavily supply-constrained cities increases land values, while the resulting additional supply does little to lower prices. The lesson from Hamilton's paper isn't that upzoning is useless, but that the more broad-based and productive the upzoning is, the more it'll improve affordability.
Arlington, Virginia's zoning code allows businesses to paint murals on their building, so long as the mural does not depict any products the business sells. So, in short, you can paint a big slice of pizza on your building, so long as you don't sell pizza inside it.
The post Zoning Board Orders Longtime Tenants' Homes Dismantled appeared first on Reason.com.
]]>Newly released body camera footage shows Aurora, Colorado, police forcing 44-year-old Teddy Pittman to the ground at gunpoint after mistaking him for a fugitive. After searching the terrified Pitman and his car, the cops eventually let him go—but not without giving him a ticket for driving with a suspended license and making a bad turn.
"I was shocked," Pittman told 9News, a local news station. "I was just minding my own business."
The incident occurred in April 2020. According to a lawsuit Pittman has filed against the officers, he left a friend's house on the afternoon of April 24 when the FBI Rocky Mountian Safe Streets Task Force began following him. The task force is a group designed to track down violent fugitives and is comprised of Aurora and Denver police officers as well as FBI agents and U.S. Marshals.
A few miles later, one of the task force vehicles pulled Pittman over, when he complied, Pittman says that the officers approached his car with their weapons drawn and ordered him to exit his vehicle with his hands visible.
Body camera footage shows officers ordering Pittman to lie facedown in the road. Over the next several minutes, the officers patted Pittman down and searched his car. One officer even falsely claimed Pittman had a gun in his car.
After seizing Pittman's wallet and checking his driver's license, the officers realized that Pittman wasn't the fugitive they were looking for and that there were no warrants out for his arrest. But the officers kept searching Pittman's car for guns and drugs.
"It's not our target….It's not our guy," one of the officers says near the end of the video."Push it as far as you want or don't want."
After coming up empty-handed, the task force let Pittman go—but not without slapping him with a traffic ticket for driving with a suspended license and making a faulty left turn. A judge eventually dismissed the ticket.
This is far from the first time Aurora police have made this kind of mistake. An almost identical case occurred in 2020 when police forced a family—including a 6-year-old girl—to lie facedown on the pavement at gunpoint after officers mistook their car for a stolen vehicle. In addition, multiple reports on the Aurora Police Department revealed extensive misconduct and constitutional violations.
According to one 2021 report, after Aurora police killed 23-year-old Elijah McClain, racial profiling is a major issue in the city's police department. "Aurora Police used force against 1.5% of Black subjects who had at least one interaction with police from 2018 to 2021," the report read. "That is nearly double the corresponding figure for white subjects. Racial differences in arrest rates…cannot explain the use-of-force disparity, at least as to Black individuals."
The post Aurora, Colorado, Police Detained the Wrong Guy at Gunpoint. They Gave Him a Ticket Anyway. appeared first on Reason.com.
]]>State legislatures and city councils are starting off 2024 by proposing lots of housing policy reforms, many good, many not so good. This week's Rent Free covers a lot of them, including:
But first, our lead story about the rich and well-to-do beneficiaries of rent control in New York City.
New York's rent stabilization law—which sets limits on maximum rents and rent increases on roughly 1 million apartments in New York City and beyond—is intended to provide stable, affordable housing to the state's renters. It's also providing a windfall for wealthy homeowners.
Documents shared with Reason show the rents paid by several New York City tenants at their rent-stabilized apartments. Other documents shared with Reason, as well as public property information, show the same tenants own additional property worth north of $1 million. Some of these rent-stabilized tenants are themselves landlords who rent out their properties for more than what their rent-stabilized apartments cost.
That includes a married couple with a four-bedroom home in the tony community of East Hampton, New York. The husband is a wine broker. The wife is a real estate associate with Sotheby's International Realty. A county document show their East Hampton property has an appraised value of $2 million.
The couple's address on that same document is a rent-stabilized apartment in Lower Manhattan where the legal rent as of September 2023 is $931 a month. Online rental listings show market-rate one-bedroom apartments in the same neighborhood renting for anywhere from $3,000 to $7,000.
Another woman, an anthropologist with her own consultancy firm, is listed as the lessee of a Brooklyn Heights apartment with a legal monthly rent of $2,436. Market-rate one-bedroom apartments in the same neighborhood go from $4,000 to $5,000 a month.
County property records show that the same woman owns a home in the Long Island community of Greenport, New York. She advertises it as a vacation home for rent on her personal website, and it's listed on several rental websites with a quoted monthly rental price of $12,000.
No Means Testing
This is all perfectly legal. New York's rent stabilization law has no means-testing requirements. That means people of any income can benefit from its suppressed rents.
Wealthy tenants are getting some of the best deals out of the state's rent stabilization law. An in-depth Wall Street Journal analysis from 2019 found that regulated rents in richer Manhattan are around half that of market-rate rents. Regulated rents in working-class areas of Queens and the Bronx are at most few hundred dollars less than market rents.
Higher-income rent-stabilized tenants were paying 39 percent less rent on average than their peers in market-rate apartments. Lower-income rent-stabilized tenants were paying only 15 percent less than their peers in market-rate apartments.
"The biggest beneficiaries of rent regulation in New York aren't low-income tenants across New York City, but more affluent, white residents of Manhattan," concluded the Journal.
The owners of rent-stabilized buildings are chaffing at requirements that they provide housing at below-market rates to people who are themselves high-income property owners.
"Rent regulation without means testing has become a scheme that rewards affluent New Yorkers whose sense of entitlement has wrecked affordable housing options for those who truly need help," said Joseph Strasburg, president of the Rent Stabilization Association, in a statement to Reason.
Little Change of Reform
New York's progressive and socialist legislators typically oppose any efforts to weaken rent stabilization or exclude the wealthy from its benefits.
In fact, progressive-backed changes to New York's rent stabilization law in 2019 made the program more favorable to high-income tenants. Under the old rules, building owners could start charging market rents on their apartments if legal rents exceeded a certain threshold and their tenant earned above $200,000 a year for two years in a row. The 2019 amendments to rent stabilization closed that "loophole."
More recently, New York state Sen. Julia Salazar (D, WF–Brooklyn) and other progressive legislators have been pushing "good cause" eviction legislation that would generally cap rent increases for all tenants (regardless of income) at 3 percent and allow renters to challenge literally any rent increase in housing court.
Real estate advocates tell Reason that adding a means-testing requirement to the rent stabilization program is a political non-starter. The wealthy beneficiaries of rent stabilization are obviously in no hurry to change the system.
Some legislators are themselves beneficiaries of rent stabilization. That includes Assemblywoman Linda Rosenthal (D, WF–Manhattan), chair of the Assembly's housing committee. The New York Post recently reported that Rosenthal, who earns $174,000 as a legislator, inherited a rent-stabilized Upper West Side apartment.
Rosenthal has also criticized New York City Mayor Eric Adams' administration's efforts to make market-rate housing construction easier. "I'm not that worried about non-affordable housing, actually," said Rosenthal. "People who have means can buy, rent anything they need in this city."
Is the third time the charm? That's certainly the hope of "yes in my backyard" (YIMBY) activists in Fort Collins, Colorado. They are pushing the city council—which has passed and then repealed a handful of liberalizing changes to the zoning code twice in less than two years—to approve the reforms for a third time.
In November 2022, Fort Collins passed a long list of updates to their land use code that included legalizing duplexes, triplexes (provided one unit was below market rate), and accessory dwelling units (ADUs) in single-family-only zoned neighborhoods across the city and upzoning transit-serviced corridors.
That sparked fierce resistance from neighborhood activists, who formed the group Preserve Fort Collins to oppose the reforms. Preserve Fort Collins describes the city council's reforms as a "free-for-all for housing developers and investors" on their website.
Within a month, the group collected enough signatures for a petition requiring the city council to either repeal their zoning changes or place the full near-500-page code update on the ballot.
The council opted to repeal and replace the code changes in 2023 with a more modest set of zoning updates that still allowed some increased densities and ADUs in residential areas. Candidates who supported the zoning changes also managed to sweep city council elections in November 2023.
But the moderating changes did little to propitiate Preserve Fort Collins, who described the new, watered-down code as an "ill-conceived march toward density and overpopulation." They once again launched a successful petition requiring the city council to repeal the code changes or place them on the ballot. In December 2023, the council once again opted for repeal.
Nevertheless, the Coloradoan reports that city council members say they will take a third crack at zoning updates come January and will work with Preserve Fort Collins to see what changes they could live with.
Chris Conway, a local teacher and activist with the group YIMBY Fort Collins, argues that the results of the November election give the council a mandate to press forward with zoning reforms that allow more housing in more areas.
"The problem in Fort Collins is blindly obvious," Conway tells Reason. "The code is a response to the concerns of regular people in Fort Collins that their friends and families and themselves are being priced out of the city."
It can take up to half a century to get a new subdivision approved in Marin County, California. To make housing more affordable, the county is now mulling a crackdown on Airbnb.
On Thursday, the Marin County Board of Supervisors will consider an ordinance drafted by county staff that would place strict new limits on short-term rentals in the western, oceanside parts of the county.
Since 2022, Marin County has had a moratorium on issuing new short-term rental licenses there.
The new county's draft ordinance, unveiled late last year, would go further by banning short-term rentals in multifamily buildings within two years and imposing new caps on short-term rental licenses below the number of rentals currently in operation. The caps are distributed by community, with some community caps being roughly 70 percent below the current number of licensees.
Existing license-holders would be able to keep renting out their properties (provided they're not in multifamily buildings). But new licenses above the cap can't be issued. Current licensees will also have to meet new review requirements and pay additional fees.
The county describes its new limits on short-term rentals as a means of "[improving] the availability of middle- and lower-income housing."
Sean Callagy, a Marin homeowner, Airbnb host, and member of the West Marin Access Coalition, which advocates for lighter regulation of short-term rentals, argues it's a misconception that short-term rentals remove long-term rental housing from the market.
He says most of the country's short-term rental operators are like him; homeowners who rent out their vacation homes for some of the year to help pay the mortgage. If putting their home on Airbnb weren't an option, few would rent it to a long-term tenant. Many would have to sell to an owner-occupier.
"It's ban first and ask questions later, but they didn't really ask the questions. They're proceeding under the assumption that if we drive away [short-term rentals] life gets better for everyone and it just doesn't make sense," says Callagy.
Back when rent control's reputation was at rock bottom, state Legislatures across the country passed laws preventing local governments from regulating the prices landlords charged their tenants. With the policy undergoing a very unjustified rehabilitation, some lawmakers are trying to undo their state's preemptions.
In Wisconsin, a group of Democratic lawmakers have introduced a bill that would repeal a law barring localities from adopting rent control and inclusionary zoning (a policy that requires developers to include below-market-rate, often money-losing units in their projects). Eleven assembly members and three senators have signed onto the legislation thus far.
Likewise, in Georgia, Rep. Eric Bell (D–Jonesboro) has introduced a bill that would repeal the Peach State's preemption on rent control.
"[Local governments] know what's best for their communities. So I feel like we should empower them to take control and have a stronger local control," Bell told local news channel 11 Alive.
Both states have majority-Republican legislatures, meaning these bills likely won't pass. Efforts to undo state rent control preemptions are nevertheless worrisome.
Rent control has a bad track record everywhere it's been implemented. The research is pretty clear that to the degree rent control policies suppress rent increases, they also suppress housing supply. It's a good thing that state laws prevent local governments from trying to use rent control to fix a housing supply shortage caused largely by their own locally set zoning laws.
Palm Beach, Florida, sets minimum lot sizes for dogs and cats. One can keep a maximum of ten dogs and/or cats on properties that are 1.5 acres or smaller. Keeping a pack of 11 to 20 dogs and/or cats requires a property of at least 2.5 acres. Properties that are 2.5 acres or more can host up to 30 cats and/or dogs.
The post Rent Control for the Rich appeared first on Reason.com.
]]>In a petition filed on Wednesday, Donald Trump's lawyers ask the U.S. Supreme Court to reverse the Colorado Supreme Court's determination that he is disqualified from that state's presidential primary ballot because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. The petition suggests several plausible reasons for rejecting that attempt to enforce Section 3 of the 14th Amendment, which was originally aimed at preventing former Confederates from returning to public office after the Civil War.
Section 3 says: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
UCLA election law expert Richard Hasen describes Trump's petition as "a strong legal document" that "raises some serious, difficult questions" about how to interpret and apply that language. Here are seven of those questions:
1. Is Section 3 self-executing?
Under Section 5 of the 14th Amendment, "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." But the Colorado Supreme Court concluded that Section 3 is "enforceable as a constitutional disqualification without implementing legislation from Congress." In an influential 2023 law review article, University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen reach the same conclusion. While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.
That interpretation seems consistent with the second sentence of Section 3, which says Congress can "remove such disability," implying that the disqualification is otherwise automatic. But Congress did enact legislation aimed at enforcing Section 3 against former Confederates during Reconstruction, although it later approved broad amnesties that removed those disabilities. Dissenting Colorado Supreme Court Justice Carlos A. Samour Jr. argued that Section 3 is not self-executing, citing Chief Justice Salmon P. Chase's 1869 opinion to that effect.
The Colorado Republican State Central Committee (CRSCC), in its own Supreme Court petition, argues that "Congress, and Congress alone, can enforce Section Three." It says the only plausibly relevant current statute is 18 USC 2383, which makes insurrection a federal crime and adds that anyone convicted of it "shall be incapable of holding any office under the United States." But as the CRSCC notes, Trump "has not been indicted under Section 2383, let alone tried and convicted," which it says "would be required to trigger application of Section Three."
Trump's petition says that argument is "worthy of consideration" by the Supreme Court. But "even if section 3 does not require enforcement legislation to have effect," his lawyers say, "the lack of such legislation deprives the courts of judicially manageable standards." Echoing a concern that Samour raised, they note that the 14th Amendment does not say who has the authority to determine whether a candidate is disqualified under Section 3 or what standard of proof should apply. "The terms 'engage' and 'insurrection' are unclear and subject to wildly varying standards," they say. "The result is that 51 different jurisdictions may (and have) adopted divergent rulings based on different standards on the same set of operative facts."
2. Is the presidency a civil office "under the United States"?
Although the answer might seem obvious, Section 3 specifically mentions senators, representatives, and presidential electors but not the head of the executive branch, who you might think would have been at the top of the list if that position was supposed to be included. "To find that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors," Trump's petition says. "This reading defies common sense."
University of Richmond law professor Kurt Lash makes the same point. "It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers," he writes. "At best," he argues, "the text of Section 3 is ambiguous regarding the office of president."
The original draft of Section 3 did specifically mention the president and the vice president, but those references were ultimately removed. Although that change seems like evidence that Section 3 does not cover the presidency or the vice presidency, the Colorado Supreme Court cited an exchange between two senators that suggests otherwise.
The revised Section 3 "does not go far enough" because ex-Confederates "may be elected President or Vice President of the United States," Sen. Reverdy Johnson (D–Md.) complained during the congressional debate over the 14th Amendment. "Why did you omit to exclude them?" Sen. Lot Morrill (R–Maine) reassured Johnson: "Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States.'" Johnson conceded that "perhaps I am wrong as to the exclusion from the presidency," adding, "no doubt I am," but "I was misled by noticing the specific exclusion in the case of senators and representatives."
3. Is the president "an officer of the United States"?
That phrase refers to the prior status of someone disqualified under Section 3. Again, it may seem obvious that the category includes the president. But Trump's lawyers note that "the phrase 'officer of the United States' appears in three constitutional provisions apart from section 3, and in each of these constitutional provisions the president is excluded from the meaning of this phrase."
The Appointments Clause "requires the president to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and 'all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.'" The Commissions Clause "requires the President to 'Commission all the Officers of the United States.'" Since the president "does not (and cannot) appoint or commission himself," Trump's lawyers argue, those clauses imply that the president is not "an officer of the United States" under the Constitution.
Similarly, the Impeachments Clause says "the President, Vice President and all civil
officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Trump's lawyers say that language likewise suggests Trump was not "an officer of the United States" when he served as president.
4. Did Trump take an oath to "support the Constitution"?
That language tracks with the oaths taken by members of Congress, state legislators, and "all executive and judicial officers," as specified in Article VI. But the presidential oath, described in Article II, is worded differently, requiring the oath taker to "preserve, protect and defend" the Constitution. The Colorado Supreme Court thought that amounted to pretty much the same thing, saying "the language of the presidential oath" is "consistent with the plain meaning of the word 'support.'" But Trump's lawyers argue that the difference in wording underlines the distinction between the president and other government officials. "The drafters of section 3 had before them both the Article VI and Article II oaths," they say, "and they chose to apply section 3 only to those who took Article VI oaths."
5. Was the Capitol riot an "insurrection"?
Two weeks after the riot, Indiana University law professor Gerard Magliocca, who in 2020 wrote "the first scholarly account" of Section 3, said he was "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like."
Magliocca nevertheless thought the Capitol riot could plausibly be described as an insurrection, since "the mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force." More recently, he has taken a firmer stance, telling Boston's NPR station, "I think that January 6 constitutes an insurrection within the meaning of Section 3."
Trump's lawyers unsurprisingly take a different view. Given the historical context, they say, "'insurrection' as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States." That is notably different, they argue, from what happened at the U.S. Capitol in 2021 or from what happened the previous year in Portland, Oregon, where "violent protestors targeted the federal courthouse…for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States." Such incidents, they say, reflect "a long history of political protests that have turned violent," which are a far cry from what Section 3's framers had in mind.
6. Did Trump "engage in" an "insurrection"?
"I think that former President Trump engaged in insurrection before and on January 6," Magliocca says. So do Baude and Paulsen, who make an originalist case for a broad reading of Section 3 that they say clearly covers Trump's conduct.
In reaching the same conclusion, the Colorado Supreme Court relied heavily on the final report from the House select committee that investigated the riot and the testimony of Chapman University sociologist Peter Simi. Simi opined that Trump "developed and employed a coded language based in doublespeak that was understood between himself and far-right extremists, while maintaining a claim to ambiguity among a wider audience."
Since Trump was speaking in code when he gave his inflammatory pre-riot speech at the Ellipse, the court reasoned, divining his intent requires going beyond the surface meaning of his words. He may have talked about "peacefully and patriotically" marching on the Capitol, the majority said, but "his violent supporters" knew what he really meant. And when he urged them to "fight like hell," they knew he meant that literally.
As Trump's lawyers note, Simi's testimony was based solely on the January 6 committee's report and his interpretation of Trump's public speeches. Simi conceded that he was not in a position to say what was "in President Trump's mind" when he gave his speech at the Ellipse. When asked whether he had "evidence that it was President Trump's intention to call them to action," Simi replied that his testimony "is not addressing that issue." Yet "the district court used Simi's testimony to support its factual finding that President Trump intended to incite violence," Trump's petition notes, and the Colorado Supreme Court agreed with that conclusion.
7. Is Section 3 a bar to running for office?
Baude and Paulsen argue that Section 3 "can and should be enforced by every official, state or federal, who judges qualifications" of political candidates. In this case, they say, that means all of those officials have a duty to exclude Trump from the ballot. But Trump's lawyers argue that Section 3 "merely bars individuals from holding office, not from seeking or winning election to office." They note that "Congress can remove a section 3 disqualification at any time," which means it could "remove that disability after a candidate is elected but before his term begins."
These complications might make you wonder whether Trump's opponents are relying on the wrong amendment to stop him from running for president again. Given his continued insistence that he actually won reelection in 2020, the 22nd Amendment seems more promising.
The post 7 Reasons Trump's Lawyers Say He Is Not Disqualified From Running for President appeared first on Reason.com.
]]>With a new year comes new opportunities, and lots of new zoning news. But on Day 2 of 2024, there's still a lot of old business to wrap up. This week's edition of Rent Free includes:
But first, we have a story on a truly bizarre court decision blocking zoning reform in Montana.
In an eyebrow-raising decision, a Montana judge has halted the implementation of two laws legalizing duplexes and accessory dwelling units on residential land across the state, writing that they'd likely do "irreparable" damage to residents of single-family neighborhoods.
"With the 'top-down' imposition of these measures, Montana's citizens…stand to suffer. They dread waking up in the morning, with no notice, and a new, more dense, building is being erected in their family neighborhood," wrote Gallatin County Judge Mike Salvagni in a Friday opinion granting suing homeowners a requested preliminary injunction against the new laws.
Large majorities in the Montana Legislature had passed duplex and Accessory Dwelling Units (ADU) laws last year as part of a package of reforms that also allowed housing in commercial zones and restricted individuals' ability to challenge the approval of general plan-compliant housing projects.
Dubbed the "Montana Miracle" by CityLab, the reforms rank as some of the more ambitious housing bills passed by any state legislature last year.
Throughout the process, these reforms attracted the opposition of some local governments and homeowner groups who argued they would spoil existing single-family neighborhoods with rampant development.
This past month, homeowners organized under the group Montanans Against Irresponsible Densification (MAID) sued the state to overturn the new laws.
The group argued that the state's zoning reforms violated constitutional guarantees of equal protection by only allowing ADUs and duplexes in single-family areas that are not covered by restrictive private covenants that ban this type of housing. MAID said this would unfairly funnel development into areas without protective covenants, and produce arbitrary results whereby duplexes could be built on one side of a street, but not on the other side.
The group also argued that the new duplex and ADU laws, by requiring local governments to approve this type of housing, violated provisions of the Montana Constitution guaranteeing citizens' right to participate in government decision-making.
It's an odd idea indeed that people have a constitutional right to the protection of private covenants they didn't opt into. One commenter on X (formerly Twitter) noted that existing zoning laws produce equally arbitrary results of allowing duplexes on one side of a street but only single-family homes on another.
Nevertheless, Salvagni reasoned that MAID's arguments were likely to prevail.
In regards to the group's equal protection claims, he writes that "the result of the new laws is that two different sets of people, one protected by restrictive covenants, the other not, results in an arbitrary application of Montana law which is unrelated to any legitimate governmental purpose."
Salvagni also agreed with MAID that citizens' right to participate in government decision-making was likely violated. He rejected the state's argument that the public's ability to participate in the legislative process through which the ADU and duplex laws were passed sufficient public participation.
It's an inevitability that as more supply-side Yes in My Backyard (YIMBY) zoning reforms are passed, more will end up getting challenged in court.
In September 2023, a Minnesota judge overturned Minneapolis' first-in-the-nation abolition of single-family-only zoning (in addition to other zoning reforms), citing the city's failure to conduct a proper state-required environmental analysis of increased allowable density.
Last month, a court in Texas also shot down zoning reforms passed by the city of Austin, siding with homeowners who'd argued the city failed to provide adequate individualized notice of the zoning changes to affected property owners.
These decisions invalidated reforms on largely procedural grounds. Salvagni's decision appears more sweeping by blocking zoning reforms because of their substance. Any law limiting public hearings on individual projects or legalizing more housing than what's allowed under existing private covenants would seem to be vulnerable under the logic of his decision.
Lawyer and Mercatus Scholar Charles Gardner has a thread on X highlighting the more novel parts of Salvagni's opinion and arguing that his decision is vulnerable to being overturned on appeal. Time will tell.
Charlottesville, Virginia, and Portland, Maine closed out the year by passing "missing middle" reforms that allow smaller multi-unit developments in formerly single-family-only areas.
Charlottesville
On December 18, the Charlottesville City Council unanimously approved a major overhaul of its zoning code that's been several years in the making.
The changes include liberalizing rules in low-density residential zones to allow at least three units by-right almost everywhere in the city, and up to eight units by-right in some residential zones. Preservation and affordability bonuses would allow builders to add up to 12 units on some parcels.
The city did retain a small single-family-only district (covering 4 percent of city land), but even here builders will have the option of adding two additional homes if they preserve the existing house on the property.
The city also created new "inclusionary zoning" standards requiring developers of projects that contain more than 10 units in mixed-use zones to offer 10 percent of those new units at rates that are affordable to people making 60 percent of the area median income. That's a pretty burdensome affordability requirement that will likely make a lot of smaller-scale apartment construction infeasible.
Charlottesville Planning Commissioner Rory Stolzenberg has a helpful thread summarizing the zoning changes. The full draft ordinance, which does not include some amendments made at the December 18 meeting, can be found here.
Portland
Also on December 18, the city council of Portland, Maine, passed a slew of zoning reforms that allow up to four units of housing on most residential properties in the city.
The reforms are intended to bring Portland into compliance with a 2022 state law requiring localities to allow "middle housing" in all residential zones. The deadline for compliance with the state law was January 1, 2024.
Portland already allowed one primary unit and two accessory dwelling units in all residential zones, plus duplexes and triplexes in select areas of the city. The new reforms allow up to four primary residences as well as two accessory ADUs on all residential lots on the mainland and up to three units (plus two ADUs) on islands within Portland's jurisdiction.
The city also eliminated parking requirements for four-unit homes.
In Montana, equal protection entitles you to be covered by restrictive covenants you didn't opt into. In Colorado, equal protection apparently doesn't protect you from cities from writing zoning ordinances that only apply to you and no one else.
The Colorado Court of Appeals has given its blessing to a Lakewood, Colorado, ordinance that bans colleges from owning off-campus student housing. The Colorado Christian University—which had converted several off-campus homes it owned into student housing—challenged the ordinance in 2021. The university argued that, as the only entity covered by the law, it was being unfairly singled out.
The appeals court rejected those arguments, finding instead that the law was a legitimate way for the city to protect residential neighborhoods being turned into "university residential life centers."
I have a new feature for Reason covering Florida's efforts to overcome its legacy of slow growth laws. That includes recent reforms allowing property owners to build residential projects in commercial areas, much to the chagrin of local officials. A snippet:
For years now, Miami Beach officials have talked and acted like the historic Clevelander hotel was the worst thing to ever happen to the city. That was until they saw the business's plans for shutting down.
Over the past decade, the adults-only hotel, bar, and restaurant on Ocean Drive has been beefing with the city over whether it is an iconic pillar of South Beach's world-famous nightlife or a bad actor whose late-night operations are bringing crime and out-of-control revelers to the area.
"It's been a very contentious seven or eight years just to stay open," says Alexander Tachmes, a lawyer and spokesperson for the Clevelander. He estimates that the business has spent $1 million challenging restrictions the city has slapped on its nighttime concerts and alcohol sales.
Tiring of fighting continuous, expensive court cases, the Clevelander's owners decided to do something different.
In September 2023, they announced a plan to redevelop the five-story hotel into a 30-story residential tower. Most of the new homes would be luxury beachside condos. But 40 percent would be below–market rate, affordable units. The redevelopment would be a way to get out of the politically controversial bar business while cashing in on the growing demand for housing in ultra-expensive Miami Beach.
As a bonus, it really pisses off the city.
"I was hoping that it was simply a joke, but I don't think it is," says Miami Beach Mayor Dan Gelber. While he'd be happy to see the Clevelander replaced, he says the owners are scoring zero points with their "hideously out-of-scale" proposal.
"It's absurd," the mayor tells Reason. "It's like the kids that kill their parents and say, 'Have mercy on us, we're orphans.'"
You can read the whole thing here.
New York City's zoning code allows entertainment venues to allow patrons to dance in all manufacturing districts. The code nevertheless prohibits customer dancing in C-1 and C-5 commercial districts.
The post Court's Wild Zoning Decision Blocks 'Montana Miracle' appeared first on Reason.com.
]]>On Thursday, Maine joined Colorado in concluding that Donald Trump is disqualified from running for president because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. Both of those decisions raise the question of what counts as an "insurrection" under Section 3 of the 14th Amendment and what it means to "engage in" one. The conjunction of Trump's ballot exclusion in Maine, which is based on a decision by the state's top election official, with his disqualification in Colorado, which is based on a ruling by that state's Supreme Court, highlights two more issues: Who decides whether a candidate is covered by Section 3, and what standard of proof should apply?
Section 3, which originally was aimed at preventing former Confederates from returning to public office after the Civil War, says "no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof." In its December 19 decision applying that provision, the Colorado Supreme Court partly upheld and partly overturned a ruling by Denver District Court Judge Sarah B. Wallace.
The case began with a lawsuit by several anti-Trump voters who sought an injunction compelling Colorado Secretary of State Jena Griswold to exclude him from the presidential primary ballot. Trump and the Colorado Republican State Central Committee joined the case as intervenors. After a five-day trial, Wallace concluded that "clear and convincing evidence" showed Trump had engaged in insurrection but that Section 3 does not apply to the presidency. The Colorado Supreme Court agreed with the first conclusion but disagreed with the second.
In Maine, by contrast, three challenges to Trump's candidacy were filed directly with Secretary of State Shenna Bellows, who held a hearing on December 15. Based on "a preponderance of the evidence" (a weaker standard than the one used in Colorado), Bellows concluded that "Mr. Trump's primary petition is invalid" because "he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment" and falsely claimed otherwise. The Trump campaign is appealing that decision in state court.
According to one interpretation of the 14th Amendment, neither the Colorado Supreme Court nor Bellows had the authority to decide whether Trump is disqualified based on his allegedly insurrectionary conduct. Under Section 5 of the amendment, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress arguably did that when it passed the Insurrection Act in 1948. Under that statute, "whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."
Although Trump has been charged with federal and state crimes based on his efforts to reverse the outcome of the 2020 presidential election, he has not been charged with insurrection, let alone convicted of that offense. According to some critics of the Colorado and Maine decisions, that means he cannot be excluded from the ballot under Section 3. That argument assumes that Section 3 can take effect only through congressional legislation and that a conviction based on proof beyond a reasonable doubt is necessary to disqualify Trump.
One piece of evidence in support of the first premise, dissenting Colorado Supreme Court Justice Carlos Samour Jr. noted, is an opinion that Chief Justice Salmon P. Chase wrote the year after the 14th Amendment was ratified. Chase took the position that Section 3 was not self-executing. University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen argue that Chase was "simply wrong on this point." While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.
In a 2023 law review article, Baude and Paulsen make an originalist case for a broad reading of Section 3 that they think clearly covers Trump. They also argue that any state or federal official charged with determining who is qualified to appear on a ballot, which would include state judges and secretaries of state, is not only authorized but obligated to disqualify Trump, along with "potentially many others" who participated in "the attempted overthrow of the 2020 presidential election."
As Baude and Paulsen see it, "Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress." It therefore "can and should be enforced by every official, state or federal, who judges qualifications." Those officials, Baude and Paulsen concede, may have different views about what sort of conduct disqualifies a candidate under Section 3. But they say uncertainty about the reach of Section 3 does not absolve officials of the responsibility to enforce it.
"Some applications," such as "declaring unilateral secession from lawful constitutional government" or "the taking up of arms against government," will be "clear and virtually indisputable, falling within the terms' core meaning," Baude and Paulsen write. "At the other end of the continuum, there will be situations that clearly lie in a safe harbor outside the legitimate range of meaning of Section Three's terms—ordinary expression of political dissent as well as even ordinary law violations."
Between those two extremes, Baude and Paulsen say, "there is a zone of reasonable, fair construction of allowable interpretation and application in which government officials may make judgments that must be conceded to be within the range of what the Constitution permits—and where the decisions and actions of government officials exercising their constitutional powers consequently cannot be considered unlawful and thereby subject to judicial invalidation. Within that fair range of meaning, different interpreters legitimately can reach differing conclusions, all in accordance with the Constitution."
The implication is that Maine's courts have no business second-guessing Bellows' determination that Trump is disqualified from the ballot. Since Baude and Paulsen think Trump is clearly covered by Section 3, Bellows' agreement on that point must qualify as a "reasonable, fair construction" and "allowable" application, meaning it is not subject to "judicial invalidation." Such broad executive-branch discretion in applying an ambiguous constitutional provision seems to open a huge can of worms, especially given Baude and Paulsen's view that not just Trump but "potentially many" other candidates could be affected.
What about due process? Trump argues that neither Wallace's trial nor Bellows' hearing gave him an adequate opportunity to contest the claim that he engaged in insurrection. Many observers, including vigorous Trump critics, agree.
"Our government cannot deprive someone of the right to hold public office without due process of law," Samour wrote in his dissent. "Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office….If President Trump committed a heinous act worthy of disqualification, he should be disqualified for the sake of protecting our hallowed democratic system, regardless of whether citizens may wish to vote for him in Colorado. But such a determination must follow the appropriate procedural avenues. Absent adequate due process, it is improper for our state to bar him from holding public office."
The Washington Post made the same point in an editorial criticizing the Colorado Supreme Court's ruling. "The case's most consequential conundrum," it said, is "whether Mr. Trump really did engage in insurrection….What's missing from the majority's analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn't even been charged with it."
According to Baude and Paulsen, such criticism is misplaced. The Fifth and 14th Amendments say no person may be deprived of "life, liberty, or property" without "due process of law." But "it is far from clear that the right to hold public office is a form of
life, liberty, or property," Baude and Paulsen write. "It is a public privilege, a public trust, to be vested with the power of the people. And though it is a closer case, the same thing may be true even for those who already hold office at the moment that Section Three disqualifies them. Due process protects private vested rights from public deprivation. It does not protect public rights." In any case, they say, Section 3 supersedes due process in this context. They make a similar argument regarding potential conflicts between Section 3 and the First Amendment.
George Mason law professor Ilya Somin agrees that a criminal conviction is not necessary to disqualify Trump under Section 3. Since this is a civil process, he says, it makes sense that a weaker standard than proof beyond a reasonable doubt would apply. He also notes that "none of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War."
While former Confederates had indisputably participated in an insurrection, however, the same cannot be said of Trump. He vigorously denies it, and even critics who think he is manifestly unsuited for the presidency do not necessarily agree that his conduct is covered by Section 3. Nor is the historical record very helpful in answering that question.
In 2020, Indiana University law professor Gerard Magliocca wrote what he described as "the first scholarly account" of Section 3. In a 2021 Lawfare essay, Magliocca said he had been "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like." He nevertheless thought the Capitol riot was plausibly viewed as an insurrection.
"The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force," Magliocca wrote. Furthermore, the criminal charges against some of the rioters indicated that they "intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government."
More recently, Magliocca has taken a firmer stand. "I think that January 6 constitutes an insurrection within the meaning of Section 3," he told Boston's NPR station last week. "I think that former President Trump engaged in insurrection before and on January 6."
If "no thought was given to what other insurrections might look like" at the time the 14th Amendment was proposed and ratified, it is hard to be confident in that assessment. And if such disputes are to be resolved by state officials across the country, applying varying interpretations of Section 3 and varying standards of proof, the results are apt to be wildly uneven and inconsistent. "I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis," Samour wrote. "Surely, this enlargement of state power is antithetical to the framers' intent."
To forestall that scenario, the U.S. Supreme Court need not reach the question of whether Trump engaged in insurrection. It could rule that Section 3 is not self-executing or that it does not apply to Trump because the presidential oath does not meet Section 3's criteria or because "any office, military or civil, under the United States" was not understood to include the presidency.
University of Richmond law professor Kurt Lash, a 14th Amendment scholar who recently wrote a paper on "the meaning and ambiguity" of Section 3, favors that last rationale. "At best, the text of Section 3 is ambiguous regarding the office of president," he writes in The New York Times. "The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."
The post Who Decides Whether Trump Can Run, and What Sort of Evidence Suffices? appeared first on Reason.com.
]]>On a Saturday night in August 2019, Elijah McClain, a 23-year-old massage therapist, was accosted by police officers while walking home from an Aurora, Colorado, convenience store where he had bought three cans of iced tea. The cops were responding to a "suspicious person" call. But McClain, who had committed no crime, did not understand why he was being detained, and his objections were met with swiftly escalating force, culminating in an injection of ketamine that left him unconscious. He never woke up.
That horrifying incident attracted national attention after George Floyd's May 2020 death in the custody of Minneapolis police officers set off widespread protests against police brutality. There were notable parallels: In both cases, a black man complained that he could not breathe after he was tackled and pinned to the ground by white police officers. Both incidents featured police indifference to those complaints, a failure to render medical aid, the questionable use of "pain compliance" techniques, and the invocation of "excited delirium" as a justification for the use of force. And both resulted in criminal charges, which in McClain's case have now been resolved by a mixture of verdicts that reflect a cascade of ultimately fatal mistakes.
Last Friday, a jury found Peter Cichuniec and Jeremy Cooper, the two paramedics who injected McClain with an overdose of ketamine, guilty of criminally negligent homicide, a felony punishable by one to three years in prison. Cichuniec, an Aurora Fire Rescue lieutenant who approved the injection, was also convicted of second-degree assault, a felony punishable by two to six years in prison. The paramedics' trial was the third in connection with McClain's death. In October, Aurora police officer Randy Roedema was convicted of criminally negligent homicide and third-degree assault, a misdemeanor punishable by up to 18 months in jail. Former Aurora police officer Jason Rosenblatt, who was tried together with Roedema, was acquitted of all charges. So was Nathan Woodyard, an officer who was tried separately in late October and early November.
After McClain's death, local prosecutors declined to file charges. Criticism of that decision, which was amplified after Floyd was killed in similar circumstances, prompted Colorado Gov. Jared Polis to order a new investigation by Attorney General Phil Weiser. That probe led to a September 2021 indictment, which listed a total of 32 charges, including manslaughter, criminally negligent homicide, and assault. While the officers' lawyers complained that the charges were the result of political pressure, the cursory nature of the first investigation suggests the real scandal was the initial determination that no charges were warranted.
When Woodyard approached McClain that night, he was responding to a 911 call from a teenager who thought McClain "look[ed] sketchy" because he was wearing a ski mask and making "all these kinds of signs" with his hands. The caller added that "he might be a good person or a bad person." He said no one was in danger and he had not seen any weapons.
Woodyard ordered McClain to stop, but McClain was listening to music through earbuds and apparently did not hear the command. "Prosecutors said Woodyard grabbed McClain within eight seconds of getting out of his patrol car without introducing himself or explaining why he wanted to talk to McClain," USA Today reported after the officer's acquittal. "McClain, seemingly caught off guard, tried to keep walking. The encounter quickly escalated."
At this point, an independent panel of investigators appointed by the Aurora City Council concluded in a February 2021 report, Woodyard did not have grounds to reasonably suspect that McClain was involved in criminal activity, which the Supreme Court has said the Fourth Amendment requires for an investigatory stop. McClain, who was holding his cellphone in one hand and a bag with the cans of iced tea in the other, "had no observable weapon and had not displayed violent or threatening behavior," the panel noted. "No crime had been reported. The officers later said they stopped Mr. McClain because he was overdressed and wearing a mask, in an area one officer referred to as 'high crime,' and a caller had reported his unusual behavior."
In addition to the ski mask, McClain was wearing sweat pants, a jacket, and a knit cap, which might have seemed strange on a summer night but is understandable in light of his anemia, a symptom of which is cold extremities. Aside from his clothing and the "unusual behavior" reported by the 911 caller, Woodyard had no reason to suspect that McClain was doing anything illegal. The decision to turn what could have been a consensual encounter into an investigatory stop "had ramifications for the rest of the encounter," the panel's report noted.
Woodyard was joined by Roedema and Rosenblatt, who were dispatched as backup for the "suspicious person" report. Woodyard decided to frisk McClain, a step that is legally justified only if police reasonably suspect the subject is armed. Yet the 911 caller had not reported any weapons (a point that was noted in the police dispatcher's message), McClain was plainly holding nothing but his phone and the bag from the convenience store, and Woodyard himself later said he "felt safe making an approach" because McClain "didn't have any weapons."
McClain, whose walk home had been forcibly interrupted for no good reason, was understandably dismayed. He repeatedly asked the cops to leave him alone and let him continue on his way. "I have a right to walk to where I'm going," he told Woodyard. "I have a right to stop you because you're being suspicious," Woodyard replied as he grabbed McClain's arm.
Less than a minute into the encounter, the officers decided they should move McClain to a grassy area in case they needed to "take him down." At this point, the independent panel noted, Woodyard's unjustified investigatory stop became an arrest, which is constitutionally permissible only when police have probable cause to believe someone has committed a crime. That is a higher standard than reasonable suspicion, a test the cops had already failed to meet.
While the cops were trying, without any legal justification, to force McClain onto the grassy area, Roedema told Rosenblatt, "He grabbed your gun, dude." According to Woodyard, that exclamation "changed the situation." Once he heard Roedema's warning, Woodyard said, he decided to "take [McClain] down to the ground as hard as I could." While tackling McClain, Woodyard twice attempted a "carotid control hold," which aims to induce unconsciousness by applying pressure on both sides of the neck to cut off blood flow to the brain. The second, more successful attempt happened when McClain was restrained on the ground.
After McClain came to, he repeatedly vomited. He was handcuffed and still wearing his ski mask at this point, and an autopsy found that he had aspirated some of the vomit. That, along with the downward pressure the officers were exerting, helps explain why he complained that he was having trouble breathing.
At his trial, Woodyard said he used the carotid control in self-defense. "I intend to take my power back," McClain had said. Woodyard said that remark, combined with Roedema's warning about Rosenblatt's gun, made him fear for his life. But as the prosecutors noted, Rosenblatt later said he had not felt anyone touch his gun, and body camera footage showed no such movement by McClain.
McClain was five feet, seven inches tall and weighed about 140 pounds. Yet the officers claimed he exhibited "crazy," "incredible," "superhuman" strength, which they attributed to "excited delirium" caused by "whatever he's on." Toxicological tests found that marijuana was the only psychoactive substance that McClain had consumed. In any case, "excited delirium" is a scientifically dubious concept that is not recognized by the American Medical Association, the American Psychiatric Association, or the World Health Organization. The label serves mainly to justify what would otherwise seem like excessive force.
Forensic pathologist Roger A. Mitchell Jr., who testified during Roedema and Rosenblatt's trial, made it clear that he does not view "excited delirium" as a valid diagnosis. But even if it were, he said, McClain's behavior was not consistent with the way the condition is usually described. "He's communicating with law enforcement," Mitchell said. "He's clear on what's going on with him. He's pleading his case." Mitchell also noted that McClain's exclamations showed he was responding to the pain inflicted by the officers. "If we believe this notion of excited delirium," he said, "one of the things with excited delirium is that you're impervious to pain."
Cichuniec and Cooper, who arrived 11 minutes after Woodyard first approached McClain, nevertheless agreed with the cops' diagnosis. According to the indictment, they reached that conclusion "after receiving some information from officers and observing Mr. McClain for about one minute." Neither paramedic "ascertained Mr. McClain's vital signs," the indictment notes. "Nor did either of them talk to or physically touch Mr. McClain before diagnosing him with excited delirium."
The appropriate treatment, they decided, was an injection of ketamine. No one at the scene questioned that decision. "Yep, sounds good," Rosenblatt said when Cooper announced that he planned to inject McClain with ketamine. "Perfect, dude, perfect," Roedema agreed.
Piling error upon error, Cooper administered 500 milligrams of ketamine. The correct dose for a 143-pound man would have been 325 milligrams, so McClain was given about 50 percent more than he should have received. Cooper never asked McClain his weight, instead guessing that it was about 200 pounds. Even if that estimate had been correct, the dosage still would have been about 50 milligrams too high.
At the paramedics' trial, Colorado Public Radio reported, "Cooper and Cichuniec said they didn't hear a police supervisor on the scene, Sgt. Dale Leonard, tell them a few details about what happened, including that McClain had received two carotid holds, which cut blood flow off to his brain, and that he had been vomiting repeatedly ever since." That information was relevant because ketamine can suppress respiration, which is especially problematic for someone whose breathing is already compromised.
Prosecutors argued that the paramedics failed to properly monitor McClain. "After McClain was given a large dose of ketamine by paramedics," Colorado Public Radio noted, "body worn camera footage shows that they didn't immediately tend to him, check his airway or otherwise look at his vital signs." Pulmonologist David Beuther testified that closer attention could have saved McClain's life. If a patient is "a little too sleepy" and "starting to slip into deep sedation," he said, you can reposition his head or use "a little plastic tube" to aid breathing.
By the time McClain was lifted onto a gurney, he was unconscious and snoring, which can indicate an overdose. In the ambulance, paramedics found that McClain had no pulse and was not breathing. They revived him with CPR and epinephrine, but he never regained consciousness.
The original autopsy report listed both the cause and manner of death as unknown. Stephen Cina, the pathologist who wrote the report, later revised it in light of information discovered by Weiser's investigation. The amended report describes the cause of death as "complications of ketamine administration following forcible restraint" but still lists the manner of death as "undetermined." Mitchell testified that he agreed with Cina about the cause of death but thought it was clear that the manner was homicide.
That characterization, which does not necessarily imply criminal liability, seems hard to deny, since it is clear that McClain would not have died if the cops and paramedics had left him alone. The question of how to allocate the legal responsibility for his death is more complicated, given all the things that went wrong that night. The cops argued that the paramedics were mainly to blame. "Elijah McClain would not have died but for the ketamine," one of Roedema's lawyers told the jury. Cooper and Cichuniec argued that the cops were mainly to blame, since they controlled the scene, provided the information on which the paramedics relied, and caused the vomiting that may have contributed to McClain's death.
Why was Rosenblatt acquitted? He had less experience than the other officers, and his lawyer, Harvey Steinberg, argued that Rosenblatt was just following orders. Roedema, by contrast, was the senior officer on the scene, and his treatment of McClain was more aggressive than Rosenblatt's.
The indictment notes that Roedema used a "bar hammer lock," a "physical defensive tactic whereby a subject's arm is held back behind their back to gain control of the subject." Roedema "stated that he 'cranked pretty hard' on Mr. McClain's shoulder and heard it pop three times." Steinberg suggested that Rosenblatt was less violent and therefore less culpable: "Rosenblatt didn't jerk his arm. It was Roedema. Rosenblatt didn't have his knee in his back. It was Roedema." It was also Roedema who claimed, probably inaccurately, that McClain was trying to grab Rosenblatt's gun, which everyone agreed was a major factor in escalating the violence.
Woodyard's acquittal is harder to understand. He set the tone for the whole encounter by initiating the use of force, and he not only used a carotid hold but did so twice, which was contrary to department policy. But Woodyard faced a different jury than Roedema did, and this one may have been more inclined to credit the claim that the cops were acting in self-defense.
Woodyard, who had been a police officer for about two years at the time, "tearfully told jurors he was weeping to his supervisor on the scene because he was fearful that he was going to die and needed to step away," Colorado Public Radio reported. The officer's lawyer, Andrew Ho, portrayed him as a bystander. "Nathan Woodyard entrusted Elijah McClain to the care and custody of his fellow officers and entrusted Elijah McClain to medically trained professionals," Ho said. "Nathan Woodyard did not kill Elijah. He's not responsible for what other people did or did not do."
Was anyone responsible? "Just because there's a tragedy does not mean there's criminality," one of Roedema's lawyers said during closing arguments. But prosecutor Duane Lyons emphasized that the officers had not followed their training. "They were told what to do," he said. "It didn't have to be this way…They were given instructions, they had opportunities, and they failed to choose to de-escalate violence when they needed to." He also faulted them for failing to check on McClain's breathing. "This is not just a tragedy," he said. "This is a crime."
The post Who Killed Elijah McClain? Mixed Verdicts Reflect a Cascade of Ultimately Fatal Mistakes. appeared first on Reason.com.
]]>"It's self-evident," President Joe Biden told reporters on Wednesday. "You saw it all. He certainly supported an insurrection. No question about it. None. Zero."
Biden was referring to the Colorado Supreme Court's recent ruling that Donald Trump is disqualified from that state's presidential primary ballot under Section 3 of the 14th Amendment, which was originally aimed at barring former Confederates from returning to public office after the Civil War. As relevant here, Section 3 says "no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same."
Biden, whose reelection bid would get a big boost from Trump's disqualification, takes it for granted that the January 6, 2021, riot at the U.S. Capitol qualified as an "insurrection" under the 14th Amendment, and he says there is "no question" that Trump "engaged in" that insurrection. But the Colorado Supreme Court's reasoning on both of those crucial points is iffy, and I say that as someone who thought Trump richly deserved his second impeachment, which was provoked by his reckless behavior before and during the riot.
On its face, that impeachment supports the court's decision, which was joined by four of seven justices. The article of impeachment, after all, charged Trump with "incitement of insurrection" and explicitly cited Section 3. But that debatable characterization was not necessary to show that Trump was guilty of "high crimes and misdemeanors."
Trump's misconduct included his refusal to accept Biden's victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to "faithfully execute" his office and to "preserve, protect and defend the Constitution." It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.
Achieving the same result under Section 3 of the 14th Amendment, by contrast, does require concluding that Trump "engaged in insurrection." But in reaching that conclusion, the Colorado Supreme Court never actually defines insurrection.
"At oral argument," the opinion notes, "President Trump's counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct." But the court does not offer "a specific definition" either: "It suffices for us to conclude that any definition of 'insurrection' for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country."
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to "hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power" by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.
They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court's premise that Trump's hotheaded supporters acted in concert with the intent of forcibly preventing "a peaceful transfer of power."
Nor is it clear that Trump "engaged in" the "insurrection" that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that "'engaged in' requires 'an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'"
Trump's pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump's demand that his supporters "fight like hell" to "save our democracy" literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump "literally exhorted his supporters to fight at the Capitol."
The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be "marching to the Capitol building to peacefully and patriotically make your voices heard." But they discount that phrasing as cover for Trump's actual intent. Given Trump's emphasis on the necessity of "fight[ing] like hell" to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that "Trump's speech took place in the context of a pattern of Trump's knowing 'encouragement and promotion of violence,'" which he accomplished by "develop[ing] and deploy[ing] a shared coded language with his violent supporters."
That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context. It is harder to believe that he cleverly developed a "coded language" that he knew some of his supporters would understand as a call to violence.
Nor is it clear how the violence that Trump allegedly intended was supposed to benefit him. There was no realistic prospect that it would actually stop Biden from taking office, and in the end it did no more than delay completion of the electoral vote count. Meanwhile, it alienated former Trump allies (albeit only briefly in some cases), led to his second impeachment, and left an ineradicable stain on his presidency.
The Colorado Supreme Court's belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court's 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
The Colorado Supreme Court quotes the 6th Circuit's elucidation of that test in the 2015 case Bible Believers v. Wayne County: "The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech."
It is hard to deny that Trump's speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?
Applying the first prong, the court cites "the general atmosphere of political violence that President Trump created before January 6" as well as the "coded language" of his speech that day. As evidence of the "specific intent" required by the second prong, it notes that "federal agencies that President Trump oversaw identified threats of violence ahead of January 6." It also cites what it takes to be the implicit message of Trump's speech and his reluctance to intervene after the riot started.
"President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power," the court says. "Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended."
All of this evidence is consistent with recklessness and dereliction of duty. But it falls short of proving that Trump deliberately "encouraged the use of violence" or that he had a "specific intent" to cause a riot, let alone that he thereby "engaged in insurrection."
The post Was the Capitol Riot an 'Insurrection,' and Did Trump 'Engage in' It? appeared first on Reason.com.
]]>Trump/Colorado reactions: "For as long as Donald J. Trump has dominated Republican politics, many Democrats have pined for a magical cure-all to rid them of his presence," wrote Reid J. Epstein for The New York Times, in an oddly self-aware piece that still manages to give airtime to an awful lot of clownish #Resistance types. Whether the Mueller investigation, the impeachments, or, now, the Colorado Supreme Court decision to throw him off the ballot, lefties have spent the better part of the last seven years attempting to manifest the end of former President Donald Trump. It has not worked.
Now, a hefty chunk of the mainstream media reaction to the Colorado decision has been…impressively aware of how flimsy the legal logic is, contra my expectations. That hasn't stopped some people from doubling down, though:
BREAKING -- California Lieutenant Governor Eleni Kounalakis calls on the CA Secretary of State to "explore every legal option to remove former President Donald Trump from California's 2024 presidential primary ballot." pic.twitter.com/S8OsJfB4iC
— Citizen Free Press (@CitizenFreePres) December 20, 2023
"Courts in six states have already dismissed parallel efforts to strike Trump from the ballot on 14th Amendment grounds," wrote Intelligencer's Ed Kilgore. "Bids to exclude him are still kicking around courts in 14 other states."
Nobody knows yet whether, when taken up by the Supreme Court, this ruling will be smacked down. But it is at least heartening to see some level of collective awareness that these are not the means by which Trump should lose; a regular old election is the way we tend to handle this, and for good reason.
"I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis," wrote Colorado Supreme Court Justice Carlos Samour Jr. in his dissent. "Surely, this enlargement of state power is antithetical to the framers' intent."
"To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary," wrote New York magazine's Jonathan Chait. "It would be seen forever by tens of millions of Americans as a negation of democracy."
Situation dire in Gaza: Aid workers report that nearly all households in Gaza are out of food and water. Roughly 85 percent of the total 2.2 million population has been displaced; of that group, 96 percent report adults skipping meals so kids can eat or eating scavenged meats that they would not normally consume. Some 13 percent report burning garbage to cook, while roughly 15 percent of displaced people cannot heat their food at all, per a World Food Programme study conducted during the first two weeks of December. The percentage of Gazans experiencing "severe hunger" as defined by international aid organizations has risen drastically over the last two or so weeks.
"We categorically reject the despicable and libelous allegations that Israeli is somehow obstructing the delivery of humanitarian aid into Gaza," said Israeli government spokesman Eylon Levy on Wednesday. "If they want more food and water to reach Gaza, they should send more food and water to Gaza. And while they're sending more aid, they should condemn Hamas for hijacking aid deliveries and diverting them to its fighters. Their silence is shameful. We will not accept international officials deflecting blame onto us to cover up the fact they're covering up for Hamas."
Israeli success: Meanwhile, the Israel Defense Forces (IDF) report that they have found massive networks of Hamas tunnels throughout their ground operation including, yesterday, a "center of power for Hamas' military and political wings," under Palestine Square—in the center of Gaza City—which "was located in the direct vicinity of commercial stores, government buildings, civilian residences, and a designated school for deaf children," per statements from the Israeli military.
Scenes from New York: A wholesome tale of carolers serenading cattle, which became a whole upstate tradition. Merry Christmas!
Milei just delivered a message where he condemned collectivism (called it by its name) for a few minutes, explained that leftism has failed catastrophically everywhere, said Argentina needs more freedom not controls, and proceeded to name 30 key deregulations— from tourism to…
— agustina vergara cid (@agustinavcid) December 21, 2023
Uh Claudine Gay appears to have copied a couple phrases in her dissertation dedication from someone else's dedication? This takes… effort. https://t.co/SHOVeIsEKh pic.twitter.com/BdXywSwcTE
— Patrick Brennan (@ptbrennan11) December 19, 2023
A plane with a sign that says "MELANIA KNOWS" flying near Trump's rally site in Waterloo, IA. pic.twitter.com/hsilppWIIR
— Olivia Rinaldi (@olivialarinaldi) December 19, 2023
The post They Can't Get Him appeared first on Reason.com.
]]>The Colorado Supreme Court ruled Tuesday that former President Donald Trump is ineligible to seek the presidency and ordered that his name be removed from the state's Republican primary ballot.
The court's reasoning has to do with a clause in the 14th Amendment that prohibits former officials who have engaged "in insurrection or rebellion against" the government from holding office, a provision originally intended to restrain former Confederates from seeking office after the Civil War. In a 4–3 ruling, the Colorado high court determined that Trump's role in instigating the January 6 riot at the U.S. Capitol was sufficient to bar him from the presidency.
"We are mindful of the magnitude and weight of the questions now before us," the majority opinion reads. "We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach."
This is, obviously, an unprecedented situation. It is unlikely to be the final word—the U.S. Supreme Court has the final say in constitutional matters, and Trump's campaign has already promised to appeal Tuesday's ruling.
Without knowing what the outcome of that appeal might be, there are three things worth keeping in mind about Tuesday's decision in Colorado—one practical, one philosophical, and one purely hypothetical.
First, this all seems a bit premature given that Trump has not yet been convicted of any crimes connected to the January 6 riot or his attempts to overturn the 2020 election. Yes, the former president is manifestly unfit for office, and the 14th Amendment's language is somewhat vague—but can someone be guilty of engaging in insurrection without being guilty of at least one actual crime related to it?
The Colorado Supreme Court says yes. I think we should be deeply skeptical of that logic. (Needless to say, the context here changes if Trump is convicted in either of the two election interference cases currently being brought against him.)
Second, let's assume that Trump's harshest critics are correct when they say he represents a unique threat to the future of American democracy. Even so, the idea of booting someone off the ballot to save democracy seems like a weird argument at best—and an authoritarian one at worst.
Yes, the 14th Amendment created a constitutionally valid mechanism for removing an insurrectionist from the ballot. That doesn't mean it's a lever that judges should be eager to pull. Not when there are other, far more democratic ways to prevent dangerous, unfit candidates from becoming president (like, say, by defeating them in open, fair elections), and particularly not when the candidate in question still hasn't been convicted of anything resembling insurrection.
Finally: What's the endgame here? President Joe Biden (or whomever the Democratic nominee turns out to be) is likely to carry Colorado whether Trump is on the ballot or not. Let's suppose courts in other blue states follow Colorado's example. Now he's missing from a bunch of states' ballots, but not ones that are likely to affect the election's outcome. What happens then?
In one scenario, Trump loses but his supporters are able to nurse a permanent grievance that the system wouldn't even let their guy compete. Not for the abstruse reasons that Trump's team tried to conjure up after the 2020 results came in, but because of something that's easy to understand and easy to see as a legitimate grievance.
In another scenario, Trump wins the Electoral College—remember, these states weren't likely to vote for him anyway—but with a far lower percentage of the popular vote. Indeed, the popular and electoral votes would be even more mismatched than in 2000 or 2016. In terms of democratic legitimacy, that outcome might be even worse for the future of the country.
But those are the two new possibilities that the Colorado's Supreme Court has opened with its ruling on Tuesday. All in all, that seems like a decision that will make things worse, not better.
The post Removing Trump From the Colorado Ballot Won't Make Things Better appeared first on Reason.com.
]]>Harris Elias was driving home one night in January 2020 when he was pulled over by a Loveland, Colorado, police officer and falsely accused of driving drunk. Even after a breathalyzer test proved that he was sober, Elias was forced to take a blood test—which again proved his sobriety.
After the arrest, Elias filed a lawsuit against the officer who arrested him. This week, the city of Loveland agreed to pay $400,000 to settle the case.
At around 10:30 p.m. on January 4, 2020, Elias was driving home from his girlfriend's house when he was pulled over by Loveland police officer William Gates, who was part of a DUI-specific task force. Gates claimed that Elias failed to signal a lane change—a claim Elias disputes.
"Officer Gates regularly claims (falsely) that the drivers he arrests for DUI did not signal a lane change," claimed Elias' suit, which was filed in January 2022. "Gates does so because this is one of the most difficult allegations to disprove, given that Loveland PD does not employ dash cams (only bodycams) and so never capture the arrested individual's actual driving."
The lawsuit claims that Gates attempted to confuse Elias by asking him several questions extremely quickly, including "nearly simultaneously" asking Elias for his license and registration and how much he had drank that night.
According to the complaint, Elias found the encounter unnerving, and after fulfilling his legal obligation to provide license and insurance, he informed Gates that he was using his right to remain silent and would not answer further questions. Gates replied, in an apparent attempt to create evidence that Elias was drunk, "Well, I smell the overwhelming odor of alcohol coming from your vehicle."
After Elias again refused to answer further questions, Gates returned to his patrol vehicle and called for additional officers. When two more police officers arrived, they eventually decided to arrest Elias and take him to the Loveland Police Station for a breathalyzer test.
Even though Elias' breathalyzer test showed a 0.000 percent blood alcohol content level, Gates insisted that Elias must have been intoxicated and ordered him to take a blood test. According to the lawsuit, Elias requested an attorney at this point, but "Gates told him no, that he needed to agree to comply with a blood test now or he was going to mark him as a refusal and his license would be revoked."
Elias eventually agreed to take the test. Nearly three months later, the results again came back negative, and the case against him was dismissed entirely. But this wasn't the end of Elias' troubles. Elias was a Federal Aviation Administration–licensed pilot, meaning that a false DUI arrest threatened his livelihood.
The FAA "has some of the most strict mandatory reporting requirements known to any agency. The penalty for failure to report can lead to an emergency revocation of all certificates (i.e., complete revocation of his pilot's license)," the lawsuit reads, noting that this kicked off an incredibly stressful and complex process to report and explain his arrest. Even though the case was dropped, "Elias will have to report this wrongful arrest on every medical renewal with the FAA for the rest of his life."
But some justice was served this week when the city of Loveland agreed to pay Elias a $400,000 settlement to end the lawsuit.
"This is, as far as we can tell, the largest non-confidential monetary payment ever made in Colorado to settle a civil rights lawsuit where the primary allegation is a wrongful DUI arrest with no physical injuries or time spent in jail," Elias' attorney, Sarah Schielke, told Fox 31, a local news station. "Policing is not a game. DUI enforcement should never be a competition. There are innocent people's lives and jobs at stake."
Elias wasn't the only person harmed in a false DUI arrest by Gates. According to the suit, in the year before Elias' arrest, Gates had made at least four false DUI arrests.
"Hardly anyone realizes what a cash cow DUI arrests are for police," Schielke told Fox 31. "The more arrests they make for this one type of crime, the more money they get, and the more awards they receive. Meanwhile, there are zero consequences for wrongful arrests of innocent people. Zero. It's perverse."
The post Colorado Cops Falsely Arrested Him for a DUI. Now He's Getting a $400,000 Settlement. appeared first on Reason.com.
]]>Voters in Colorado are being offered a bit of a Faustian bargain this Election Day: the promise of a short-term property tax cut that comes with some scary long-term consequences.
Proposition HH, if approved, would undo a key component of the state's unique Taxpayer Bill of Rights law (TABOR). That law, passed as a ballot initiative in 1992, limits the annual growth of government spending to a formula based on inflation and population growth. It's been widely hailed by fiscal conservatives across the country as a model for forcing the government to live within its means.
As part of the TABOR law, Colorado is required to return excess tax revenue to taxpayers—rather than running big surpluses that easily tempt state lawmakers into expanding existing programs or dreaming up new ones.
Proposition HH would change that. If approved, the ballot initiative would create a new, higher cap on how much revenue the state is allowed to keep as an annual surplus. In return, taxpayers would get a reduction in property tax rates and some other changes to how property taxes are calculated that might provide additional tax cuts to some homeowners.
With property taxes rising sharply in recent years, it's easy to understand why some voters might like that trade-off. But the Independence Institute, the state's free market think tank, warns against making a deal with the devil. The group estimates that the state would get to keep and spend an additional $65 billion over the next two decades if Proposition HH is approved.
"If voters approve Proposition HH this November, it will not reduce property taxes," Ben Murrey, the Independence Institute's fiscal policy director, wrote last month in National Review. "Its adoption would merely produce a slightly smaller increase" while giving the state the power to keep billions of dollars that it would otherwise have to refund to voters.
Gov. Jared Polis, a Democrat, has been advocating for the passage of Proposition HH. In July, when he signed the bill that put this question on the ballot, Polis said passage of the initiative would allow the state to tap a "very strong TABOR surplus" to avoid cutting funding for schools while still providing property tax relief to homeowners.
While Polis often demonstrates libertarian instincts, particularly on social issues, this push to undermine TABOR should be a serious black mark on his record. Indeed, he comes away from this campaign looking like a fairly typical politician who wants to get his hands on more taxpayer money.
As is often the case with complicated policy changes put in front of voters, the language used on the ballot to describe Proposition HH has been a source of controversy. The description provided to voters focuses on the property tax reductions and makes only a passing mention of how the initiative would undermine TABOR.
Forbes says "Wording Of Colorado Ballot Measure Is Misleading, State Board Confirms"https://t.co/GRkJb4llPt
Proposition HH is a net tax increase - that is why it must be on the ballot and voted on by the people of #Colorado.
Vote NO on Proposition HH
#copolitics #coleg pic.twitter.com/xjibwbanfk
— schotts (@schotts) November 2, 2023
Independent assessments of the ballot initiative's wording confirm that it could confuse many voters. As Ballotpedia notes, one commonly used system for determining the readability of ballot questions says Proposition HH is written at a Grade 23 level—which suggests you might need a doctoral degree to understand it.
Tricky things, those deals can be. In Colorado, taxpayers could end up paying the price.
The post In Colorado, Voters Could Undo Key Component of TABOR Law appeared first on Reason.com.
]]>What would your internet searches reveal about you if others could scrutinize and second-guess them? It's something to think about, given that the big search engines, like Google, store search histories and make them available to the authorities. In fact, as happened in a recently decided Colorado case, police can start from search terms of interest and pressure tech companies to surrender the identities of anyone who has surfed for specified keywords. The decision is chilling for anybody who has ever pondered their online history in the hands of a stranger—or who just cares about privacy.
"Today, the Colorado Supreme Court became the first state supreme court in the country to address the constitutionality of a keyword warrant—a digital dragnet tool that allows law enforcement to identify everyone who searched the internet for a specific term or phrase," Jennifer Lynch and Andrew Crocker of the Electronic Frontier Foundation (EFF) reported on Monday. "The case is People v. Seymour, which involved a tragic home arson that killed several people. Police didn't have a suspect, so they used a keyword warrant to ask Google for identifying information on anyone and everyone who searched for variations on the home's street address in the two weeks prior to the arson."
In the Seymour case, the majority opinion, written by Justice William W. Hood, III, conceded that the warrant was "constitutionally defective" because it lacked individualized probably cause. The majority found that defendant Gavin Seymour "has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history." Importantly, "law enforcement's copying of Seymour's Google search history meaningfully interfered with his possessory interest in that data and constituted a seizure subject to constitutional protection."
The majority also allowed that Seymour's "search history implicates his right to freedom of expression."
Ultimately, though, the four-justice majority ruled that "law enforcement obtained and executed the warrant in good faith, so the evidence shouldn't be suppressed under the exclusionary rule."
Wait. What?
"Until today, no court had established that individuals have a constitutionally protected privacy interest in their Google search history," the majority added.
It's more or less the same reasoning as you find behind qualified immunity. Sure, constitutional rights were violated. But how were the police to know? Well, maybe because the excessively broad nature of the search should have been obvious to anybody who has even a passing acquaintance with the Constitution.
"The warrant was so facially deficient that it forecloses application of the good-faith exception to the exclusionary rule," Justice Monica M. Márquez objected in the dissent. "As the majority admits, the warrant was not based on individualized probable cause with respect to any Google user."
Law enforcement officers should have known they were engaged in a "fishing expedition," she noted.
Márquez went on to warn that "by authorizing law enforcement to rummage through the private search histories of a billion individuals for potential evidence of criminal activity, reverse-keyword warrants permit exactly what the Fourth Amendment forbids. They are tantamount to a high-tech version of the reviled 'general warrants' that first gave rise to the protections in the Fourth Amendment."
"I anticipate that reverse-keyword warrants will swiftly become the investigative tool of first resort," Márquez added. "Because, why not? It's a tantalizingly easy shortcut to generating a list of potential suspects."
That list of potential suspects could be anybody who drops a keyword or phrase into a search engine that retains such information (more about that in a moment). That might be a writer looking for "how-to" information on bomb-making for the purposes of a novel. It could be somebody looking up an unfamiliar term after hearing news of a horrific event. Or it might be a matter of satisfying curiosity. It shouldn't matter why you might want to expand your knowledge; you ought not run the risk of being scooped up and questioned by the cops just because you decided to find out what the hell "tentacle porn" is a few days before an especially bizarre crime. Or because you used the internet to learn about things some politicians don't like.
"Keyword warrants not only have the potential to implicate innocent people, they allow the government to target people for sensitive search terms like the drug mifepristone, or the names of gender-affirming healthcare providers, or information about psychedelic drugs," EFF's Lynch and Crocker point out. "Even searches that refer to crimes or acts of terror are not themselves criminal in all or even most cases (otherwise historians, reporters, and crime novelists could all be subject to criminal investigation)."
Both EFF and the dissent emphasize that the Colorado Seymour decision authorizing keyword searches is weak. The majority opinion offers plenty of ground for other courts to come to different conclusions that not only recognize constitutional protections, but also apply them without carving out exceptions.
Until then, though, and because everybody's favorite search engine, Google, has a history of surrendering information on internet searches to the powers-that-be, it's wise to patronize competitors that don't maintain such histories. If the information doesn't exist, it can't be surrendered to the authorities.
"DuckDuckGo doesn't have any search histories by design and, bc of that, has had 0 search warrants (of any kind) since our founding in 2008," the internet firm boasted on what used to be Twitter in 2021. The company's respect for privacy is a major element of its marketing.
PC Mag rates Brave Search well, too, along with the company's privacy-focused Brave browser. In fact, linking a privacy-respecting browser with an anonymous search engine and, perhaps, a virtual private network that encrypts internet traffic is a good way to shield online activities from prying eyes. No approach is perfect, so check the effectiveness of your efforts with EFF's Cover Your Tracks tool.
Technology is evolving faster than the legal system can keep up. In fact, Colorado Justice Maria E. Berkenkotter, who ultimately concurred with the Seymour opinion, complained that "for the majority, tech seems not to have blended search and seizure so much as it has blurred search and seizure." Until the courts catch up with the changing world, whenever that may happen, anybody concerned about privacy will have to take steps to protect themselves where the law isn't ready to step in.
The post Odd Colorado Ruling Upholds Internet Keyword Search Warrant appeared first on Reason.com.
]]>Colorado has a popular Democratic governor, Jared Polis.
He's a rare Democrat who says, "I'm for more freedom and lower taxes."
But is he really?
At least he's willing to come to Stossel TV to debate.
Refreshingly, Polis supports charter schools. He even founded two. Unfortunately, his state's school choice program only applies to government schools. Florida, Arizona, Utah, Indiana, West Virginia, Iowa, and Arkansas now help parents send their kids to any school.
When I tell Polis that Colorado lags, he responds, "I'm not a fan of these voucher programs with no accountability where it can be Joe's Taco Shop and K-8 academy and they're getting taxpayer money."
But it's not true that independent schools have "no accountability." They are accountable to parents, which is better than being "accountable" to sleepy government bureaucrats.
His state also launched universal preschool. But why? Even the much-praised Head Start program doesn't help kids. A federal study found that by third grade, there was no difference between those who attend Head Start and those who don't.
"Why fund something that makes no difference?" I ask.
Polis responds: "High-quality early childhood education leads to better outcomes."
It probably would. But rarely does government offer "high quality."
Another Polis mistake: He supported a higher tax on vape products.
"Vaping saves lives," I point out. "It's better than smoking."
"Even though vaping has been effective in helping people get off of smoking," Polis responds, "it's also led to more nicotine addiction, especially among young people."
But nicotine isn't what kills.
At least, when it comes to legalizing marijuana and psychedelics, Colorado leads the country.
"It's ultimately a matter of personal responsibility," says Polis. "If you want to use marijuana, if you want to drink, if you want to smoke, that's your prerogative. The government shouldn't be deciding that for you."
That's good to hear.
Colorado produces lots of oil and gas. Polis is requiring 30 percent reductions for nitrous oxide emissions.
"Sounds like it will cripple the business," I tell him.
"The oil and gas companies are going to be able to reach that," Polis responds. "It simply means rather than moving oil and gas on trucks, they use pipelines."
We'll see how that works out.
Another area where we disagree: Polis opposed the recent Supreme Court decision that ruled a website designer should not be forced to create a wedding site for a gay couple.
"It's OK to force me to make a website or cake for your marriage?" I ask.
"If you're a public accommodation or storefront, you can't say no Blacks, no Jews, no gays," Polis responds. "Obviously, you don't accept a commission to paint something or do something that you don't agree with. There's a gray area…what's creative and what's public accommodation."
I don't think it's a gray area. Business owners should be free to make their own rules. They created the business. Consumers have choices. There's more than one bakery or website designer.
Polis also criticized the court for declaring President Joe Biden's student loan forgiveness unconstitutional.
I ask, "Why should someone who doesn't go to college…have to pay for people like you and me who went to the same overpriced college [Princeton]?"
"There is a problem with costs in higher education," replies Polis, dodging my question but admitting that government handouts raise prices. "Federal policy…helps fuel the increase in costs."
Polis then claimed that Democrats are "more pro-freedom than Republicans."
But most Democrats don't want people left free to own guns, choose their kids' schools, hire whom they want, or not bake cakes for people with whom they disagree. Sometimes I think abortion is the only choice Democrats support.
I complain to Polis, "Democrats got me pretty much banned from Facebook because I say climate change is not an emergency."
"Why do you say it's Democrats?" Polis replies, arguing that Republicans are more eager to ban social media. He points to Montana's ban of TikTok. But of course, that's not about censoring content; it's about China's ownership.
Polis and I talked for almost an hour about crime, equity versus equality, entrepreneurship, and more. We disagree but also find common ground. I'm glad he's willing to debate. You can watch the whole interview at JohnStossel.com.
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post Jared Polis: Democrats Are 'More Pro-Freedom Than Republicans' appeared first on Reason.com.
]]>Jaiden is a 12-year-old boy who attends the Vanguard School in Colorado Springs, Colorado. He is the subject of a video that went viral on social media; it shows the boy and his mother confronting a school administrator who asserts that the Gadsden flag patch on his backpack violates district policy.
"The reason that we do not want the flag displayed is due to its origins with slavery and the slave trade," says the administrator.
Meet 12yo Jaiden who was kicked out of class yesterday in Colorado Springs for having a Gadsden flag patch, which the school claims has "origins with slavery."
The school's director said via email that the patch was "disruptive to the classroom environment."
Receipts in the ???? pic.twitter.com/qQ8jK1zSpR
— Connor Boyack ???? (@cboyack) August 29, 2023
On Monday, school officials removed Jaiden from class due to his Gadsden flag patch. His mother has fought back against this disciplinary action, explaining that the flag—a coiled snake above the phrase "Don't tread on me"—is not a pro-slavery image; it has its origins in the Revolutionary War and was intended as a symbol of resistance to British tyranny.
District officials did not respond to a request for comment, but Libertas Institute President Connor Boyack—who first publicized Jaiden's situation—shared an email that they sent to Jaiden's mother, in which the district reiterated its position that the Gadsden flag is an "unacceptable symbol" tied to "white-supremacy" and "patriot" groups.
It's true that some white supremacists have appropriated the flag. But so have classical liberals and libertarians—including Reason (check out our 404 Error page). Some lefty groups have cited Gadsden too. There's even a pro-LGBT version.
In any case, Jaiden's mother is absolutely correct that the flag's origins have nothing to do with racism or slavery. In their email, district officials approvingly cited a 2016 Washington Post article by Reason's Eugene Volokh evaluating an Equal Employment Opportunity Commission (EEOC) case. The case in question involved a post office employee whose Gadsden flag hat had generated racial harassment claims. But ultimately, the EEOC declined to rule that the Gadsden flag was a racist symbol.
The Supreme Court has ruled that K-12 officials have significant authority to limit students' free expression rights in order to promote classroom cohesion. But the school cannot discriminate against Jaiden's viewpoint by wrongly and arbitrarily declaring the Gadsden flag to be a hate symbol.
"There is nothing inherently disruptive about a student displaying a Gadsden flag patch on his backpack," writes Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression. "Public school administrators can't ban the expression of an idea, symbol, or viewpoint just because they personally dislike it."
Democratic Colorado Gov. Jared Polis also came to Jaiden's defense, describing the flag's message as "iconic" in a post on X.
"The Gadsden flag is a proud symbol of the American revolution and [an] iconic warning to Britain or any government not to violate the liberties of Americans," wrote Polis. "It appears on popular American medallions and challenge coins through today and Ben Franklin also adopted it to symbolize the union of the 13 colonies. It's a great teaching moment for a history lesson!"
When reached for comment by Reason, Polis reaffirmed his comment and noted that he also agreed with sentiments expressed by Rep. Ted Lieu (D–Calif.).
"I oppose banning the Gadsden flag in schools for the same reason I oppose conservative schools districts that ban LGBTQ flags in schools," wrote Lieu. "Let kids be their authentic selves and give them a world of information—students can figure out what's important to them."
The post 12-Year-Old Boy Removed From School Over 'Don't Tread on Me' Patch appeared first on Reason.com.
]]>From Denver, another tragic story about cops shooting and killing someone holding a "weapon" that turned out to actually be a harmless object. In this case, an officer with the Denver Police Department (DPD) shot and killed a man armed with a marker. The officer (whose name has not been released) said she believed that 36-year-old Brandon Cole had been holding a knife when she shot him on the evening of August 5.
Now, the DPD has admitted that Cole was not holding a weapon after all.
"Through the investigation, it was determined that the object Mr. Cole had in his hand during the interaction with the officers was a black marker," Denver Police Commander Matt Clark said at a Monday press conference.
According to Clark, police were responding to a 911 caller who said they thought they saw a man push his wife out of a wheelchair. When two police officers—one male and one female—arrived on the residential street where this had allegedly taken place, they found a woman sitting on the street nearby an empty wheelchair and observed a man "reaching into the driver's area of a vehicle."
The female officer then noticed Cole holding "an object that she believed to be a knife," said Clark. Cole began moving toward her, prompting the male officer to use his Taser on him. But it "did not have an effect," said Clark, and Cole continued moving toward the female officer, making it within "several feet" of her.
She fired twice, hitting Cole. Cole was taken to a hospital, where he was pronounced dead.
Body cam footage shows a small child standing just behind Cole on the sidewalk when the officer shoots.
"There just wasn't an opportunity to transition to a Taser," said Police Chief Ron Thomas. "When she finally deploys her duty weapon, the person is so close to her that her view of that young child and [another person behind Cole] are not even clear to her."
The officer who shot Cole seems to face little repercussion for killing a man for holding a marker and endangering a small child. She will now "complete the department's reintegration program before returning to a patrol assignment," said Clark on Monday.
Cole leaves behind three children, according to NBC News.
A few takes on the latest Donald Trump indictment, in which the former president and 18 others are charged with partaking in a "criminal enterprise" in violation of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act. The aim of this alleged enterprise "was to overturn Georgia's presidential election result," Fulton County District Attorney Fani Willis said Monday.
"Georgia's RICO law, as interpreted by state courts, is even broader than the famously flexible federal version, covering many more 'predicate offenses,' defining 'enterprise' very loosely, and prescribing a weaker test for establishing a pattern of racketeering activity," notes Reason's Jacob Sullum:
The indictment nevertheless hinges on debatable interpretations of specific conduct that Willis portrays as part of a criminal conspiracy but the defendants will characterize as legitimate efforts to rectify what they perceived as systematic election fraud. As with the federal indictment of Trump that was unsealed earlier this month, which covers much of the same territory, the choice between those dueling descriptions will depend largely on how a jury views each defendant's knowledge and intent.
Some say that the more criminal charges people pile on Trump, the more success he's likely to have among conservative voters. But this may not be true:
Do Trump's indictments increase his support among Republican primary voters? NO.
Polls suggesting this use a bad question format. We asked better questions (about the documents indictment) and found that indictments hurt Trump a little bit.
Preprint: https://t.co/rLMpCJn6ah pic.twitter.com/caW3G4B3Cp
— Matt Graham (@Matt__Graham) August 15, 2023
Clark Neily, senior vice president for legal studies at the Cato Institute, thinks the Georgia indictment is particularly bad news for Trump:
Up until now, I've been hesitant to predict how the various prosecutions of Donald Trump are likely to turn out. But no longer. I believe yesterday's indictment in Georgia sealed Trump's fate, and it is now all but certain that he will be convicted of multiple felonies in one or more of the four pending cases against him.
So does lawyer and conservative columnist Andrew C. McCarthy, who writes at the New York Post:
[Willis] is running into the same complications that Biden Justice Department special counsel Jack Smith faces in the election-interference charges he has brought against Trump in Washington, DC, federal court.
In fact, there is significant overlap in that case and Willis' — the federal case includes the Georgia shenanigans but is broader because Trump's schemes went beyond Georgia, seeking to reverse election results in additional battleground states won by Biden.
Smith's problem is that the federal penal statutes he has invoked — relating to fraud, obstruction and civil rights — do not clearly and narrowly target the kind of conduct in which Trump engaged. …
Unlike Smith, Willis can invoke laws that are specifically designed to deal with election-interference conduct of the kind Trump engaged in.
This runs counter to suggestions made by the likes of Chris Christie and Asa Hutchinson, two of Trump's opponents for the GOP presidential nomination. "I think that this conduct is essentially covered by the federal indictment," Christie told Fox News. "Generally, state cases are deferential to the federal cases that have been brought," said Hutchinson, "and I think you can make the case that Georgia should have been deferential because there's overlap there as well, but it is what it is."
Overall, Trump's 2024 opponents varied sharply in their reactions. "This is further evidence that Trump knew he lost the 2020 election and was ready to do anything it took to cling to power," said former Texas Rep. Will Hurd. Meanwhile, Vivek Ramaswamy called the indictments "politicized persecutions" and Florida Gov. Ron DeSantis called it another example of the "criminalization of politics."
"At the core of today's anti-racism is little more than a vibe shift." Anti-racists are overcorrecting, suggests Tyler Austin Harper at The Atlantic. "Until recently, calling attention to a stranger's race … would have been considered a social faux pas," he writes. But in recent years, Harper has "grown used to" awkward comments about from well-meaning progressives about the fact the color of his skin:
In their righteous crusade against the bad color-blindness of policies such as race-neutral college admissions, these contemporary anti-racists have also jettisoned the kind of good color-blindness that holds that we are more than our race, and that we should conduct our social life according to that idealized principle. Rather than balance a critique of color-blind law and policy with a continuing embrace of interpersonal color-blindness as a social etiquette, contemporary anti-racists throw the baby out with the bathwater. In place of the old color-blind ideal, they have foisted upon well-meaning white liberals a successor social etiquette predicated on the necessity of foregrounding racial difference rather than minimizing it.
As a Black guy who grew up in a politically purple area—where being a good person meant adhering to the kind of civil-rights-era color-blindness that is now passé—I find this emergent anti-racist culture jarring. Many of my liberal friends and acquaintances now seem to believe that being a good person means constantly reminding Black people that you are aware of their Blackness. Difference, no longer to be politely ignored, is insisted upon at all times under the guise of acknowledging "positionality." Though I am rarely made to feel excessively aware of my race when hanging out with more conservative friends or visiting my hometown, in the more liberal social circles in which I typically travel, my race is constantly invoked—"acknowledged" and "centered"—by well-intentioned anti-racist "allies." …
My point is not that conservatives have better racial politics—they do not—but rather that something about current progressive racial discourse has become warped and distorted. The anti-racist culture that is ascendant seems to me to have little to do with combatting structural racism or cultivating better relationships between white and Black Americans. And its rejection of color-blindness as a social ethos is not a new frontier of radical political action.
No, at the core of today's anti-racism is little more than a vibe shift—a soft matrix of conciliatory gestures and hip phraseology that give adherents the feeling that there has been a cultural change, when in fact we have merely put carpet over the rotting floorboards.
New York City targets landlords of unlicensed cannabis growers. "In the latest effort to stop unlicensed cannabis dispensaries from opening, city lawmakers went after the landlords, not the illegal operators themselves," reports NY 1.
A law now, in effect, explicitly prohibits landlords from knowingly renting to illegal dispensaries that cannabis or tobacco products.
But how does a landlord officially know their commercial tenant is selling marijuana without a license?
From a letter following a raid from the sheriff's office or the NYPD.
"The landlord gets a letter from the city saying you're renting to an entity that's conducting illegal business and we want you to evict them," Councilwoman Lynn Schulman, a Queens Democrat who was the prime sponsor of the law, said.
Then, there is supposed to be a follow up.
"When there's a re-inspection of that premises, they'll get another notice. After that, then they'll get fined," Schulman said.
That fine — $5,000 dollars for the first violation and $10,000 for subsequent violations. The fines go through the Office of Administrative Trials and Hearings.
The move is similar to the way many cities target prostitution, with possible charges for people who rent to sex workers or allow their premises to be used for commercial sex.
It's also part of what's best described as the "war on intermediaries." Cops, activists, and politicians have been targeting third parties—landlords, banks, tech platforms, hotels—that they say should be responsible for stopping criminal use of their product or premises.
• "Murder is almost certainly going to fall nationally in 2023 and it is increasingly looking like murder will fall at a level not seen in decades (if at all)," notes data analyst Jeff Asher. "Our YTD Murder Dashboard shows murder is down nearly 13 percent in now 114 cities with available data."
• The arbitrary ban on gun possession by drug users invites wildly uneven enforcement, writes Reason's Jacob Sullum.
• I'm participating tomorrow in a Cato Institute panel on fertility rates and pro-natalist policies; you can register to watch it live here.
Is it better to expand government programs or reduce government intervention to support families effectively?
Join @vanessabcalder, @chellivia, @JGunlock & @ENBrown for a discussion: https://t.co/Ot4ZXiJ9sw#FreeingAmericanFamilies
READ MORE: https://t.co/GRc4znkbvX pic.twitter.com/ojTprfYCN3
— CatoEvents (@CatoEvents) August 13, 2023
• Philadelphia once led the nation in sentencing minors to life in prison without parole. Now it leads the country in letting them go:
NEW: Philadelphia once sentenced more kids to life without parole than any other city.
Since 2016, it has led the country in letting them go.
For the @nytimes, I wrote about that transformation and the people at the center of the fight.
Gift Link: https://t.co/FL0lFIj6uN pic.twitter.com/JWNk4rqSxm
— issie lapowsky (@issielapowsky) August 15, 2023
• Florida prison officials let a man's prostate cancer progress until he was paralyzed and terminally ill.
The post Denver Cop Kills Man Holding a Marker appeared first on Reason.com.
]]>It's August. Many young people head off to college.
This year, fortunately, fewer will go.
I say "fortunately" because college is now an overpriced scam.
Overpriced, because normal incentives to be frugal and make smart judgements about who should go to college were thrown out when the federal government took over granting student loans.
Why?
Because our government basically vomits money at everyone who applies.
If private lenders gave out the loans, they'd look at whether they were likely to be paid back. They'd ask questions like: "What will you study? You really think majoring in dance will lead to a job that will pay you enough to allow you to pay us back?"
Government rarely asks these questions. Bureaucrats throw money at students. Many don't benefit. Many shouldn't even be going to college. Today, nearly half of the students given loans don't graduate even after six years.
Many feel like failures.
College is good for people who want to be college professors or who major in fields like engineering and computer science that might lead to good jobs. But that's not most people. Government loans encourage everyone to go to college, even if they're not very interested in academics.
Government's handouts also invite colleges to keep raising tuition. Over the past 50 years, college cost rose at four times the rate of inflation. Four times!
Years ago, I reported how colleges were suddenly wasting money on luxuries like fancy gyms and even day spas. Last week, The Wall Street Journal reported that it's gotten worse: The University of Oklahoma bought a monastery in Italy for study abroad students! The University of Kentucky built a theater where students play video games.
"Why not raise tuition?" asks the typical college president. "Uncle Sam pays the bill!"
When I went to Princeton, tuition was $2,000. Now its $60,000.
Colleges have little incentive to cut costs or innovate. Princeton still "teaches" by having professors lecture. Super boring. I slept through many.
Although today, I guess I should thank Princeton because its tedious lectures inspired me to try to find better ways to present information. That made me successful on TV.
Today, student loan borrowers owe tens of thousands of dollars. Last year, President Joe Biden announced he would cancel up to $20,000 of that debt per person.
Indebted students loved that! A group named the Student Debt Crisis Center called that "a major win for many."
But it would be a major loss for many more! Canceling debt is unfair to the people who work hard and pay off their debts.
Fortunately, Biden's plan was struck down by the Supreme Court, which said only Congress has the right to cancel student debt. Congress didn't.
Now Biden's trying again. The administration announced they will forgive debt for anyone who's been making payments for more than 20 years. That's better, but still bad. Maybe courts will stop this handout, too.
College students take on loans and spend decades in debt because they believe they must get a degree to be hired. But that's no longer true. IBM, Accenture, Dell, Bank of America, Google, and other big companies, recognizing the uselessness of many undergraduate degrees, recently dropped college degree requirements. So have state governments in Maryland, Utah, Colorado, Pennsylvania, Alaska, North Carolina, New Jersey, and Virginia.
Good jobs in the trades, like welding and plumbing, don't require a college degree. Trade school programs often take less than two years and cost much less than college.
To have a good life or get a good job, you don't need fancy dining halls, video game auditoriums, or a college degree.
College has become a government-subsidized rip-off. It's good that fewer people go.
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post The Government Has Made College an Overpriced Scam appeared first on Reason.com.
]]>There is actually a Democratic governor who cares about economic freedom!
He's Colorado Gov. Jared Polis. He's the subject of my new video.
Before Polis got into the ugly field of government, he did useful work. He was an entrepreneur. He started an online flower company, modernized his parents' greeting card company, and founded charter schools, an internet access company, Spanish-speaking movie theaters, and an aquaculture venture fund. He sold the flower and greeting card companies for more than $1 billion.
Polis says being an entrepreneur "really helped prepare me for public service in ways that people don't expect."
Wait. I don't like the way he used the term "public service."
"I think you did public service when you ran a business. Why is only government called public service?" I ask.
"I do like to think…any company that adds value, does something in a more efficient way, a better way, is certainly a form of service as well," Polis responds.
Good. He's right. Certainly Amazon, Starlink, Apple, Google, etc., provide more service to the public than most governments do.
Heck, government often gets in the way.
In Denver, officials shut down a kids' lemonade stand because the kids "didn't have a permit." That's typical.
I once tried to get such a permit and open a lemonade stand in New York City. The government website promised to make the process easy. It didn't. There were mysterious acronyms like "EIN" (employee identification number). Some instructions were unintelligible. Others were just ridiculous, like making me buy a "government-approved" fire extinguisher for my lemonade stand.
"Government in general does a lot of things that aren't necessary," Polis admits. He signed a bill to make it legal in Colorado for anyone under 18 to run a small or occasional business without a permit.
Polis pushes other ideas meant to make it easier for people to succeed. He wants to get rid of Colorado's income tax.
"It penalizes success," he says. "Income is something that's good. We've reduced the income tax twice in Colorado since I've been there."
Not by much. It only dropped from 4.63 percent to 4.4 percent, but still, those are unusual words, especially from a Democrat.
Polis also has a different take on fighting inflation: fight it "with immigration" and "getting rid of tariffs."
That's something I rarely hear from politicians from either party.
"Tariffs in particular penalize trade," says Polis. "Trade's a good thing. If two people, willing partners, both have something and both want what the other has, they make an exchange. They're both better off. We should not penalize trade."
Regarding immigration, he says, "We have…an artificial labor shortage because we have people who are here today who are perfectly willing to work. They just don't have the right federal permit to work."
During COVID, Polis ordered statewide closures, but he lifted faster than other Democrat-run states.
"Our businesses reopened really early," says Polis.
Not as early as Florida, Texas, or South Dakota, but sooner than blue states.
Polis also supports legalization of drugs, including, most recently, magic mushrooms.
"Your state led the country in drug legalization, marijuana and now psychedelics. This is a good thing?" I ask.
"Very good," Polis responds. "We put a lot of the corner drug dealers out of business. It's created jobs, tax revenue, and it's led to a safer product."
Polis isn't threatened by the negative effects of drug use. "I think it's ultimately a matter of personal responsibility. If you want to use marijuana, to drink, to smoke, that's your prerogative. The government shouldn't be deciding that for you."
It's rare and refreshing to hear a Democrat talk about individual freedom.
Unfortunately he becomes squishy on freedom when it comes to Colorado's forcing bakers and website designers to work for events they oppose. He also expanded government-run schools; now taxpayers must pay for state preschools. I bet that doesn't end well.
I'll cover that and other issues where we disagree in a future column.
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post The Democratic Governor Who Wants Drug Legalization and Free Markets appeared first on Reason.com.
]]>In many states, Americans can now ditch their physical wallet and verify their identity simply by tapping their device on a scanner. And just as digital wallets from Apple and Google have made commerce more convenient, digital ID systems could potentially make government interactions faster and more efficient. But they also raise the ominous specter of government surveillance. Can we have the efficiency of a digital ID without letting government track our every move?
Yes, but that's not the path we're on.
Take Colorado. Since 2019, Coloradans have been able to use a digital ID as a legal form of personal identification throughout the state. Users download an application to their smartphone, enroll in the service, and have their identity authenticated by taking photos or videos of a valid ID card or other government issued documents to prove that they are who they claim to be. Then that information is encrypted, and the user is granted a digital ID and an associated key or code that serves as an identifier.
Colorodans can simply show their digital ID to verify their identity in much the same way as you would show your driver's license to a bartender to prove you are over 21. That means of verifying identity is relatively private. However, many services, both public and private, are increasingly turning to electronic verification, which requires pinging a government server. This ping creates a data record outlining who, what, when, and where. Over time, these records create a government-controlled ledger of information about its citizens.
Built and maintained by third-party vendors, Colorado Digital ID collects troves of information from users. As outlined in the privacy policy for myColorado, the app collects data "including, but not limited to your IP address, device ID and browser type," and information on the "general geographic area" of the user. The privacy policy further details that the government shares information with third-party service providers and, much more concerningly, with law enforcement and other government agencies upon request.
The fundamental flaw in digital ID systems like Colorado's is that they are centralized. In order to work, citizens must trust the government to protect their data from malevolent actors and from the state itself, despite the fact that government agencies have not been good stewards of citizen data.
When implementing digital ID systems, many states claim they will respect the privacy and civil liberties of their citizens, essentially promising that they will not use their newfound power for evil. But far better than Google's longtime motto "Don't be evil," is the idea of "Can't be evil." It's easier to trust state actors to respect our privacy when they lack the ability to violate our privacy.
And yet, digital IDs do show promise. These systems could streamline and modernize archaic procedures by introducing secure, easily verifiable credentials that work seamlessly across our physical and digital lives. Digital IDs can help make governments more accessible and efficient, reducing costs and increasing civic participation by automating many processes that would otherwise require physical interactions. For example, digital ID systems can allow citizens to securely apply for permits online, eliminating the time and hassle of doing so in person.
How do we get the good and not the bad? For inspiration, we should look to the cypherpunks of the late 1980s and early 1990s who had a clear vision centered around robust privacy secured by encryption. "We cannot expect governments, corporations, or other large, faceless organizations to grant us privacy out of their beneficence," wrote Eric Hughes in A Cypherpunk Manifesto. "The technologies of the past did not allow for strong privacy, but electronic technologies do."
Decentralized networks now make it such that there need not be a trusted intermediary in a digital system, so digital IDs could theoretically cut the government out entirely. Similarly, advanced cryptographic methods such as zero-knowledge proofs allow information to be verified without the verifier needing access to the information. Combining these two characteristics, we can create systems that grant us all the benefits of digital IDs and are resistant to surveillance. In fact, several projects already have protocols and products that operate based on these principles.
Hughes is right that governments, by their very nature, resist privacy and are more than willing to exploit new technologies to surveil citizens. Thus, as more states and localities choose to implement digital ID systems, it is up to the citizens to demand that those systems be built in ways that protect their civil liberties. The technology exists. All that is left is for it to be implemented.
The post Government Wants To Control Your Digital Identity appeared first on Reason.com.
]]>This is the audio version of The Reason Livestream, which takes place every Thursday at 1 p.m. Eastern.
The guests this week were the podcaster and writer Coleman Hughes and the Cato Institute's Walter Olson. We talked about the recent high-profile Supreme Court cases that struck down the use of affirmative action in college admissions and ruled that a web designer in Colorado could not be forced to make a site for same-sex couples. Along with the legal issues involved, we discussed the immense cultural changes over the past 50 years related to racial, ethnic, and sexual identities.
Today's sponsor:
The post Coleman Hughes and Walter Olson: The Supreme Court Got Its Affirmative Action and Gay Website Cases Right appeared first on Reason.com.
]]>The government may not compel someone to "create speech she does not believe," the Supreme Court ruled this morning. In a 6–3 opinion authored by Justice Neil Gorsuch, the Court sided with a graphic designer, Lorie Smith, who wanted to expand into the wedding-website business without being forced by Colorado law to create products celebrating same-sex marriages.
Back in 2021, the U.S. Court of Appeals for the 10th Circuit found that the planned websites would each constitute "an original, customized creation," designed by Smith "using text, graphics, and in some cases videos" with a goal of celebrating the couple's "unique love story." As such, it said they "qualify as 'pure speech' protected by the First Amendment." The lower court admitted that Smith was willing to provide her services to anyone, regardless of race, religion, or sexual orientation, so long as the substance of the project did not contradict her values. It also recognized that "Colorado's 'very purpose' in seeking to apply its law to Ms. Smith" was to stamp out dissenting ideas about marriage. Despite all of that, incredibly, the 10th Circuit held that the state government was within its authority to compel her to create such websites against her will.
Lamenting "an unfortunate tendency by some to defend First Amendment values only when they find the speaker's message sympathetic," Gorsuch—joined by Chief Justice John Roberts and Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Amy Coney Barrett—concluded otherwise.
The ruling in 303 Creative LLC v. Elenis is neither as narrow nor as broad as it (theoretically) could have been. The Court didn't do away with public accommodations, or businesses prohibited from discriminating against customers on the basis of characteristics such as skin color or national origin. It did note that "no public accommodations law is immune from the demands of the Constitution" and that "public accommodations statutes can sweep too broadly when deployed to compel speech." (The Colorado law was guilty in this instance.)
The high court also didn't establish a right for any and every business owner to decline to provide services for same-sex weddings—only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.
But the majority did decide Smith's case by appealing to free-expression precedents rather than religious-liberty ones. In other words, the justices didn't say that the faith-based nature of Smith's beliefs about marriage entitled her to an exemption. Presumably, a secular person with moral or factual objections to expressing a particular message would receive all the same protections as a Christian or Muslim objecting on religious grounds. As it should be.
"The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong," Gorsuch wrote in his majority opinion. "Of course, abiding the Constitution's commitment to the freedom of speech means all of us will encounter ideas we consider…'misguided, or even hurtful'….But tolerance, not coercion, is our Nation's answer."
The post Colorado Can't Force a Graphic Designer To Create Same-Sex Wedding Websites, Supreme Court Rules appeared first on Reason.com.
]]>Tyler Zanella, a paraprofessional with Colorado's Poudre School District, has been charged with three counts each of felony assault against an at-risk juvenile, misdemeanor assault, and misdemeanor knowingly or recklessly causing child abuse. Police say video captured Zanella striking a kindergarten student with disabilities on a school bus on at least three different days. The school system has placed Zanella on administrative leave.
The post Brickbat: Bad Bus Behavior appeared first on Reason.com.
]]>In January 2023, just days after her inauguration, Arizona's new Democratic governor, Katie Hobbs, used her first State of the State speech to bemoan the high and rising price of housing.
"Our state is no stranger to the boom-and-bust housing cycles—but this is something wholly different," she said. "Three Arizona cities—Tucson, Mesa, and Phoenix—have seen some of the highest rent increases in the nation. The number of individuals experiencing homelessness has risen significantly in recent years."
The moment seemed ripe for reform.
Just a few weeks later, however, the new governor killed a bill that would have eventually zeroed out about $300 million a year in taxes people pay on their housing costs. In February, Hobbs vetoed legislation that would have barred local governments from charging taxes on the rents tenants pay.
Ending Arizona's quixotic local rent taxes has long been a goal of the state's Republicans, who argue they cost renters hundreds of millions of dollars a year. Soaring housing costs and big municipal budget surpluses even brought around a couple of Democrats in the polarized Legislature.
But those savings to taxpayers also meant $300 million of red ink for Arizona's local governments. Eliminating rent taxes was a non-starter for Arizona localities' influential state lobbying arm, the Arizona League of Cities and Towns.
"This bill does not provide meaningful relief, will likely harm those it's purported to help, and will likely only accomplish providing a tax break for landlords," said league president and Yuma Mayor Douglas Nicholls in a press release distributed by Hobbs' office.
According to the author of the rent tax legislation, Arizona Sen. Steve Kaiser (R–Phoenix), the league's opposition sealed his bill's fate. "It's 100 percent" the league, he told Reason in February. "They have a lot of control and influence over the governor right now."
With the exception of Hawaii, which doesn't have municipalities, every state in the country has an association of city governments dedicated to influencing state policy.
Funded by dues from city budgets and controlled by elected city officials, these organizations have exerted formidable influence on state-level lawmaking, almost always with the singular goal of preserving municipalities' maximum autonomy to tax and regulate as they see fit.
And because the dues-paying municipalities are public entities funded by tax revenues, they have done so at considerable public expense.
Over the past decade, these leagues of cities have increasingly sparred with free market activists trying to put state guardrails on municipal regulation and conservative state legislators eager to overturn the policies of large, liberal cities.
Meanwhile, the country's widening housing crisis has opened a new front in this war over local control.
During COVID, millions of Americans left expensive coastal cities for life in the Sunbelt and Mountain West. The sudden inflows to Texas, Colorado, Montana, and beyond accelerated already rising home prices and rents. Affordability problems that were once thought safely contained in New York and San Francisco have spread to the rest of the country.
In response, a bipartisan mix of policy makers is taking a fresh, critical look at how local housing regulations are gumming up the new construction needed to moderate these sudden price spikes.
In state capitols across the American West, both Democrats and Republican lawmakers have introduced very similar bills that would override existing local housing regulations in favor of more permissive state rules. These state policies would streamline the approval of new homes, allow more units to be built on less land, and legalize less expensive types of housing.
These bills are supported by an oddball coalition of left-leaning housing affordability advocates, right-leaning property rights supporters, environmentalists, and libertarian policy wonks.
At the state level, these reforms are always opposed by taxpayer-funded leagues of cities. State-level zoning preemption represents an existential threat to their members and their mission.
Leagues of cities have proven remarkably effective at besting bipartisan pro-housing reforms with the argument that local governments know their communities best, so local control should prevail—housing crisis or no.
Home Rulers
War and peace and national economic policy are still decided in Washington, D.C. But localities exercise considerable control over the fine details of the average American's day-to-day life. Whether you can start a small business in your garage, get a straw with your soda, or shoot off fireworks on the Fourth of July is determined by city hall.
It wasn't always this way. For much of the country's early history, local governments were comparatively toothless. The U.S. Constitution gives them no powers or protections. Anything mayors and city councilors wanted to do, even just pave the streets, required them to ask state legislators.
But around the turn of the 20th century, municipal governments were rescued from obscurity by the "home rule" revolution.
The idea was "there's some natural domain of policy that cities have and can be defined by constitutions," says Yale Law School professor David Schleicher. "The progressives pushed this form of home rule to rationalize government. They also hated state legislatures, which they thought were super, super corrupt."
In the 1950s, the National League of Cities—then the American Municipal Association—spread a model home-rule law that continues to set the basic relationship between state and local governments today. Schleicher describes it as "great powers for cities to do things but no protections against override" from state governments.
Sweeping powers to tax and regulate combined with the ever-present threat that state lawmakers might take those powers away gives cities and their state-level associations a powerful incentive to lobby.
In her 2021 book When Cities Lobby, New York University political scientist Julia Payson notes that local governments are often the largest spenders of lobbying dollars at state capitals. For instance, from 1999 to 2014, local governments in California spent up to $100 million per legislative session* of taxpayer money on lobbying, more than any other interest group. They outstripped influential labor unions' lobbying spending by a 3–1 ratio.
The purpose of this influence operation is simple and explicit.
"That deep desire for local decision-making is the common thread that continues to link municipal officials across time, geography, and political ideology," wrote Clarence Anthony, the executive director and CEO of the National League of Cities, in 2020.
Payson is more succinct when she writes that cities lobby primarily for "more money, greater autonomy, fewer mandates, and increased institutional power."
Individual municipalities collectively spend the bulk of lobbying dollars. But their efforts are often directed at competing against other cities for state funding for local projects. Leagues of cities play a crucial role in fighting for cities' interests in local control generally.
Payson's book notes that state municipal associations collectively represent 95 percent of all municipal governments. In each association's charter is a commitment to two goals: ensuring state funding for cities and opposing legislation reducing local authority. It's less common for charters to mention specific policy goals like reducing homelessness or protecting public employee benefits.
In one sense, leagues of cities are no different from the Farm Bureau, the Teamsters, or any other interest group that tries to influence policies to the benefit of its members.
What makes them distinct, and controversial, is they're controlled by local elected officials using public resources for their lobbying efforts.
"This isn't some private entity, pursuing private interests. It's literally a collection of local governments that exists for advocating for local governments, not its citizens," says Jon Riches, an attorney with the Goldwater Institute, an Arizona-based free market think tank.
Riches notes that employees of the League of Arizona Cities and Towns draw from the state's public pension system. At the same time, Riches complains that they don't have to respond to public records requests like a normal public entity. In that respect, they are treated like a private organization.
The ability to draw from public resources makes them a powerful lobbying group at the state level, where interest groups are often less well-funded and organized, says Schleicher.
The Arizona league has an annual revenue of about $3.4 million, with $2.2 million of that coming from taxpayer-funded dues from its municipal members. That makes it about half the size of the influential Arizona Education Association (the teachers union) and about the same size as the Arizona Multi-Family Housing Association (which represents developers).
That comparison probably understates its influence at the state Capitol given just how focused the league is on lobbying state legislation. The Arizona league employs three in-house staff primarily focused on legislative issues. In FY 2023, it also spent $330,000 (or 10 percent of its budget) on contract lobbying and consulting services.
"The challenge with taxpayers funding lobbyists is that they're being forced to pay for services that typically run contrary to their interests," Chuck DeVore, then-vice president of the Texas Public Policy Foundation, told Reason in 2017. Lobbyists with the Texas Municipal League, he says, "invariably lobby for bigger government, more borrowing, higher spending, and more regulation." Leagues of cities are dedicated almost exclusively to fighting limits on their taxing and regulatory authority.
The Goldwater Institute has fought the Arizona League of Cities and Towns on a number of policy issues, including bills the institute has sponsored to protect home-based businesses, prevent municipal employees from engaging in union activism on the job, and regulate short-term rentals.
League staff themselves say they play a vital role in the public policy-making process. They offer state lawmakers the invaluable perspective of local governments on how best to respond to local issues.
"We represent the governments that are closest to the people," says Tom Savage, legislative director of the Arizona League of Cities and Towns. "When we come down to engage with our legislators on issues that they're considering, we try to inform them of the decisions they're making and how they're going to impact their constituents at the local level."
Responding to criticisms about transparency, Savage argues that the Arizona league is exceptionally open about its operations. "Everything we do when we talk to our 25-member executive board, all of those conversations are occurring in an open meeting format. They're open to the public, we post our agendas online, we post our minutes online," he says.
Leagues of cities strive to appear bipartisan. They represent big liberal cities and small conservative towns as local governments first.
That task has become more difficult over the past decade. Growing Republican strength in state legislatures, and their waning influence in municipal governments, has seen conservatives get increasingly on board with state preemption.
In a 2020 research brief, the National League of Cities notes that laws preempting minimum wage increases, local gun control measures, expanded anti-discrimination laws, and more have spread like wildfire over the past decade. State leagues' mission increasingly shifted to stopping these conservative initiatives.
Saving them from becoming a liberal influence group by default is the most partisan-scrambled issue of all, one that up until now cities have had the most authority over: housing.
States vs. Cities
In January, at a meeting of the Montana House of Representatives Local Government Committee, Rep. Katie Zolnikov (R–Billings) rose to make the case for her bill to create a minimum lot size of 2,500 square feet across the state.
The bill was designed to allow smaller lots than many Montana localities currently allow. Larger lot requirements drive up home prices by forcing builders to use more land per house.
Putting some state-level "sideboards" on excessive minimum lot size regulations would help bring Montana's spiking COVID-era prices back down to earth, Zolnikov told the committee. "This gives landowners more freedoms to develop their property in a way that serves the demand for their community."
There's a growing consensus in policy circles that housing is expensive because zoning regulations make it difficult to build more of it. Most of those regulations are imposed by local governments. In response, some advocates have pushed for state legislatures to override local regulations with lighter, more pro-growth state zoning rules.
The move toward preemption has scrambled partisan factions—and the weird new divide was apparent at the Montana committee hearing.
Testifying in favor of Zolnikov's bill were representatives from the local free market think tank the Frontier Institute, the left-leaning housing advocacy group Shelter WF, the right-leaning Americans for Prosperity, a local environmental advocacy group, and a former Democratic lawmaker.
The opposition was far more selective. It included only a spokesperson for the Montana League of Cities and Towns, a small-town mayor who was also a director with the league, several local government employees, and a member of the state's city planning association.
Opponents' arguments against the bill focused almost exclusively on the merits of local control of housing policy.
"It shouldn't be forced upon every community regardless of local circumstances. I'm not joking when I tell you that has only been done in California under Gov. Gavin Newsom," said the representative from the Montana league.
This unified local opposition proved persuasive. Zolnikov's bill officially died in the Legislature in March.
"Unfortunately, virtually always, it's leagues of cities organizations that are fighting to kill these bills that would put guardrails around local planning," says Nolan Gray, research director for housing advocacy group California YIMBY (and occasional Reason contributor), which stands for Yes In My Back Yard.
Gray testified in favor of Zolnikov's bill at that January hearing. A few months later, he testified in support of Senate Bill 23-213 in Colorado, a bill crafted by the state's Democratic Gov. Jared Polis that would require cities to allow a wider range of dwellings, with a focus on increasing density.
At that hearing, the bill's supporters included a diverse array of environmentalists, YIMBY housing advocates, homebuilders, and business interests. Its opponents were almost uniformly local governments and associations representing local governments.
When Kaiser's own sweeping housing reform bill, S.B. 1117—which would have likewise allowed accessory dwelling units (ADUs) everywhere, shrunk minimum lot sizes, pared back height limits, and required faster issuing of permits—was up for its first hearing in February in Arizona, the opposition was once again local officials and the state's league of cities and towns.
Leagues of cities argue that housing is everywhere and always a local issue and should be decided by local governments with local knowledge.
"There's nothing more local than what happens in your neighborhood," says Savage, the Arizona League of Cities legislative director. "There's no way a state law can reflect the individual needs of these communities."
At the Montana hearing, the state's league of cities representative noted that the Legislature could end up approving lot size reform for the whole state after only a few brief committee hearings.
"In our communities, the discussion about whether or not to reduce or eliminate minimum sizes would literally take hours and hours, public meeting after public meeting. You'd be up late into the night having discussions about impacts to the local community in terms of health and safety [and] services," she said.
For supporters of state-level preemption, routing around all that process is a feature, not a bug. What leagues of cities say is crucial local knowledge, YIMBY zoning reformers argue are often just bad local incentives.
Local governments are often captured by anti-growth residents who are willing to keep regulatory caps on housing if it means quieter streets, less construction noise, higher property values, and less change generally. If that drives up the cost of housing for the state generally, so be it.
"There are just certain types of land use regulations that we know local governments abuse," says Gray. "It's gotten us into a place where many cities are not building enough housing. The most affluent neighborhoods and towns are building virtually no housing."
Because the politics of zoning reform are so scrambled, with Democrats and Republicans on both sides of the issue, nonpartisan groups like leagues of cities can punch above their already considerable weight. That's particularly true for a policy area that's long been assumed to be the exclusive domain of cities.
"They have this particular source of authority that comes from sounding neutral. The fact that it sounds so anodyne," says Schleicher. "They have this added benefit which is that they're nonpartisan. They are a convenient tool for people opposed to something to point to and say 'the league of cities opposes it.'"
The confusing and highly technical nature of a lot of zoning policy gives the league, and its assumed expertise, a lot of additional influence, which critics argue they abuse.
Kaiser says there have been two primary reasons people lined up against the Arizona housing bill.
The first is "people don't understand the bill," he says. The other is "they just hate it because they're somehow associated with or close to the league of cities and towns here. They're a no because [the league] told them to be a no. They trust them."
Leagues of cities will occasionally make other policy arguments against state zoning reforms that go beyond preserving municipal authority.
At a hearing on Kaiser's S.B. 1117, a league of cities representative complained that his bill did nothing to guarantee that newly legalized housing would be affordable. Nevertheless, the league is currently opposing a bill that would override zoning controls only for affordable apartments near rail transit lines.
The point is local control. And local control almost always means more control—more regulations, more restrictions, more rules and processes that ultimately make housing more scarce and more expensive.
One can see this clearly in the advocacy of the National League of Cities. The organization has produced reports criticizing "NIMBY politics" and pushed updated model home rule laws that would all but ban states from routing around those NIMBY politics to do the upzoning themselves.
At the state level, leagues of cities have endorsed legislation and reforms that limit public hearings on individual developments and restrict private citizens' and third parties' abilities to challenge local governments' approval of housing. They also often support or are neutral on bills that require them to assess housing needs in their community.
These bills are one example of where protecting the powers of local governments aligns with more housing production. League support for those bills nevertheless cuts against their claims that they're merely interested in preserving citizen input into local affairs.
Situations where leagues find themselves on the side of more housing are still the exception, not the rule.
Kaiser's housing bill made it out of committee with bipartisan support but ultimately died on the Arizona Senate floor. Some of the policies from that bill have been included in other pieces of legislation that the league continues to oppose.
Colorado's zoning reform bill failed in the face of unified Republican opposition and a Democratic caucus split over the idea of state preemption.
Kevin Bommer of the Colorado Municipal League tells Reason his organization could come around to supporting the bill if the state-level preemptions were replaced with a voluntary menu of policy options.
Such a version of the bill managed to pass the Colorado Senate but ran into opposition in the House, where members insisted on preemption measures being included.
Hitting this impasse, Colorado Public Radio said the bill "imploded" in its final hours.
Despite League opposition, the Montana Legislature managed to pass a number of housing reforms, including bills requiring local governments to allow duplexes, triplexes, granny flats, and residential development in commercial zones. A bill supported by housing reformers and the league that limits public hearings on individual development projects also passed.
A League of Their Own
Since their inception, critics of leagues of cities have been trying to take away their tax funding.
In the early and mid-20th century, a flurry of taxpayer lawsuits in California, Ohio, and Arizona challenged the legality or constitutionality of spending city funds on league dues.
In 1944, the Arizona Supreme Court ruled—in a case brought by a Phoenix resident against his city—that league activities weren't a public purpose and, therefore, couldn't be funded by municipal tax revenue. That defunded the state league for four years, before a 1948 Supreme Court decision restored cities' ability to spend tax dollars on the league.
In that latter decision, the court ruled that because the purposes of the league included the improved functioning of municipal government, its purposes were sufficiently "public" to warrant taxpayer funding. And if the league of cities went beyond those purposes, then the judiciary could step in again and revoke its funding.
That hasn't happened. Instead, critics of tax-funded government lobbying have had to take their case to leagues' home turf: state legislatures.
The preemption fights of the 2010s have sparked perennial, unsuccessful legislative efforts to eliminate taxpayer funding of lobbying, including the funding of municipal associations.
"If you're a [lobbyist] in this state, we think you ought not get more taxpayer dollars to lobby for more government. We think you ought not get tax dollars for anything," says James Quintero of the Texas Public Policy Foundation, which has supported several bills banning public funds from being used for lobbying over the years.
"I think that would fundamentally change the game in a hugely positive way. You would remove this artificial advocacy that exists and is growing government. You would return the people's house back to the average citizen," he says.
A Texas bill prohibiting taxpayer dollars from going to lobbying activities passed the state Senate but stalled in the House this year. In Arizona, bills to prohibit league staff from receiving state retirement benefits and to prohibit taxpayer funds from going to lobbying activities both failed.
Schleicher, the Yale professor, is critical of these efforts to totally defund municipal leagues. He says that these groups often support bad policies, including unfettered local control of housing policy. But in a world where local governments get their powers from state governments, it makes sense for them to have organized representation at the state level.
"Cities need to work with state governments. And they can't work with them if they can't talk to them," he says. "In a complex intergovernmental negotiating system, the idea that you'd have someone working in a state Capitol just seems not crazy at all."
While it's tempting to blame league advocacy for the failure of every bill that would remove or relax zoning restrictions, it's also true that public support for these policies is often weak. Organized taxpayer-funded opposition is a headwind on policies that are already a tough sell.
One YIMBY tactic is to encourage housing advocates to show up to planning commission hearings and neighborhood association meetings to make the case for individual projects and more housing generally.
The idea was that these traditional forums for NIMBY politics could be won over to the pro-housing side if people with better ideas showed up. Perhaps something similar can happen with leagues of cities.
In March, the housing policy committee for the League of California Cities met to consider S.B. 4, a bill that would make it easier for churches to build affordable housing on their land. Because it would override local zoning restrictions, one would assume the league would end up opposing it.
Instead, the committee deadlocked on several motions either opposing the bill or demanding amendments to weaken it. It was the first time that the league had deadlocked in this way. (The bill has since passed out of the California Senate.)
"I think there's a transitional moment. The league has pretty much always taken the position of opposing most major housing bills," says Sergio Lopez, a city councilmember in Campbell, California, and a member of the league's housing policy committee who voted against the anti-S.B. 4 resolutions. "There's a recognition that there's a constituency, a majority in my community, [that believe] that there's a need for more housing, and what we've done in the past is not going to cut it," he says.
Leagues of cities are unusual interest groups. They're publicly funded organizations representing public officials. That gives them great influence over the policy-making process and incentivizes them to push for greater government control at the local level.
It also makes them vulnerable.
Unlike almost every other interest group, leagues of cities' lobbying arms can have the majority of their funding taken away by state legislators. Changing political views on housing could see their membership replaced with officers and board members more amenable to state zoning reform.
In wars over zoning policy, leagues of cities are both participants and, increasingly, battlefields themselves.
*CORRECTION: The original version of this article misstated how much money local governments in California spend on lobbying.
The post NIMBY Cities Are Using Your Tax Dollars To Lobby Against New Housing appeared first on Reason.com.
]]>"If there is a bedrock principle underlying the First Amendment," the U.S. Supreme Court said in the 1989 case Texas v. Johnson, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." In practice, that principle means all sorts of despicable utterances, including "hate speech," are constitutionally protected.
But the Court also has said that the First Amendment has its limits. One of them involves "true threats" of violence. In the 2003 case Virginia v. Black, the justices defined that category as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." The First Amendment, the Court held, "permits" the government "to ban a 'true threat.'"
Deciding what counts as a "true threat" is no easy task, however. In April, the justices heard oral arguments in Counterman v. Colorado, which asks "whether, to establish that a statement is a 'true threat' unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective 'reasonable person' would regard the statement as a threat of violence."
Billy Raymond Counterman was convicted under a Colorado anti-stalking law after sending a musician numerous Facebook messages from various accounts. "Fuck off permanently," one message said. "You're not being good for human relations," said another. "Die. Don't Need You."
The state law under which Counterman was convicted makes it a crime to repeatedly make "any form of communication with another person….that would cause a reasonable person to suffer serious emotional distress and does cause that person….to suffer serious emotional distress." Whether or not Counterman intended to convey a threat was immaterial under that law.
The implications of Counterman v. Colorado extend beyond one man's ugly Facebook messages. "The Nation is undergoing a communications revolution, driven by unprecedented new forms of online expression—and unprecedented new attempts by government to monitor and restrict such expression," the Cato Institute observed in an amicus brief. "This case is the right vehicle to set clear, badly needed boundaries for government authority to limit online expression through the harsh cudgel of criminal prosecution."
The post Is Telling Someone To 'Die' on Facebook Protected by the First Amendment? appeared first on Reason.com.
]]>In yesterday's municipal elections, Denver voters roundly rejected a ballot initiative that would have allowed the conversion of a private, shuttered golf course into thousands of new homes and a park.
While votes are still being counted, early returns show that just under 40 percent of voters cast 'yes' votes for Referred Question 20. If approved, the measure would have dissolved a conservation easement requiring the 155-acre Park Hill Golf Course to remain a golf course and allowed developer Westside to proceed with its plans to build 3,200 housing units alongside a park and other public amenities.
"The Park Hill Golf Course will forever be a case study in missed opportunities. With historically low turnout, Denver has rejected its single best opportunity to build new affordable housing and create new public parks," said Westside in a statement. "Thousands of Denverites who urgently need more affordable housing are now at even greater risk of displacement."
Westside first acquired the Park Hill site back in 2019 and has been trying to put a mixed-use housing project on it ever since. At the time, developing the site required only that the city and the site's owner agree to lift the conservation easement requiring the property to be maintained as a golf course.
The company's plans didn't sit with neighborhood activists, who argued the city shouldn't forfeit the open space and should instead look for ways to acquire the site and convert the entire property into a park.
In 2021, these activists—organized under the group Save Open Spaces (SOS) Denver—successfully passed a ballot initiative requiring that any proposed dissolution of conservation easements be put to the voters. A Westside-sponsored initiative that would have exempted their property from this ballot initiative requirement failed.
Nevertheless, Westside and the city continued to hash out a development agreement for the Park Hill site. The final plan would have had the company offer hundreds of its planned units at below-market rates for lower-income residents. Westside had also agreed to reserve the majority of the 155-acre property for parks and open space, among other amenities it promised to provide for the neighborhood.
This did little to mollify opponents, who objected to any loss of open space.
"In a climate crisis, in a heat island with a deficit of trees, you don't cut them down and build on top of it. Not when you have alternatives that are equal and better," Harry Doby, an activist with SOS Denver, told Reason earlier this year. He suggested industrial properties adjacent to the site should be redeveloped instead.
The Westside project also attracted fervent opposition from Denver's socialists.
Democratic Socialists of America-endorsed City Councilmember Candi CdeBaca, who is on track to lose her reelection bid, criticized the Westside proposal as insufficiently affordable and said the Park Hill site lacked the infrastructure necessary to support an influx of residents.
The city's DSA chapter, and the national DSA's Housing Justice Commission, both came out against the Park Hill redevelopment as well. They argued letting a developer turn the golf course into more housing would only benefit "capital" at the expense of "democratic control and redistribution of land."
We support Denver DSA. Affordable housing can't be provided by the market. Reforms offered up by the state and developers that don't include democratic control and redistribution of land are ultimately false promises that serve only to benefit capital. https://t.co/EWMbFZXIAs
— DSA Housing Justice Commission ???????? (@dsa_housing) March 17, 2023
Countering this eclectic opposition were the city's local Yes in My Backyard (YIMBY) activists, affordable housing developer Habitat for Humanity, and business groups.
The Denver City Council approved a development agreement and rezoning of the Park Hill site in January 2023, setting the stage for last night's ballot initiative.
Throughout the process, Westside has argued that the site has to be a golf course as long as the conservation easement is in place. Opponents won't get the park they've been clamoring for.
After last night's vote, the company has said the land will be returned to a regulation 18-hole golf course and that the site is immediately closed to public use.
Doby, in a February email, predicted that Westside will not go through with the cost of restoring the golf course to active use, and instead cut its losses and sell the property. Because of the 'no' vote, he argues that "a developer wouldn't touch this parcel with a 100 foot pole." That should decrease the sale price, making it feasible for a non-profit to buy the land and work with the city to modify the easement to allow the park.
Time will tell what exactly ends up happening with the site. What is certain is that thousands of units that would have otherwise housed people won't be built.
The post Denver Voters Reject Plan To Let Developer Convert Its Private Golf Course Into Thousands of Homes appeared first on Reason.com.
]]>Two weeks after the 2020 presidential election, three Trump campaign lawyers held a bizarre press conference that laid bare the lunacy of the president's claim that systematic fraud had denied him a second term. Sidney Powell and Rudy Giuliani described an elaborate criminal conspiracy involving Dominion Voting Systems, tricky software, phony ballots, election officials across the country, George Soros, the Clinton Foundation, and "communist money through Venezuela, Cuba, and likely China."
Compared to Powell and Giuliani, the third lawyer, Jenna Ellis, seemed relatively sane, urging patience as the campaign's post-election lawsuits worked their way through the courts. But as Ellis conceded in a statement released on Wednesday, she joined Powell and Giuliani in making false claims about election fraud, even if she did so less frequently and flamboyantly.
In response to a complaint from the 65 Project, a group that seeks professional discipline of lawyers who promoted Trump's stolen-election fantasy, Colorado Presiding Disciplinary Judge Bryon M. Large publicly censured Ellis for violating a rule of professional conduct that prohibits "reckless, knowing, or intentional misrepresentations by attorneys." In the stipulation that accompanied the censure, Ellis admitted that she had made 10 "misrepresentations" while "serving as counsel for the Trump campaign and personal counsel to President Trump."
Even at that crazy press conference on November 19, Ellis gave Powell and Giuliani credibility by describing them as members of "an elite strike force team that is working on behalf of the President and the campaign to make sure that our Constitution is protected." She rebuked "fake news" organizations for assuming that the campaign had no evidence to support its fraud claims and promised it would produce that evidence in due course.
"Putting on evidence takes time," Ellis said. "This is basically an opening statement so the American people can understand what the networks have been hiding and what they refuse to cover, because all of your fake news headlines are dancing around the merits of this case and are trying to de-legitimize what we are doing here."
What were they doing? "Our objective is to make sure to preserve and protect election integrity," Ellis said. "This is about maintaining free and fair elections in this country. It is not about overturning an outcome. It is about making sure that election integrity is preserved, and every American should want that."
Without explicitly embracing Powell and Giuliani's conspiracy theory, Ellis intimated that something had gone horribly wrong in the way the election was conducted. "We have time, and we have constitutional provisions that will step in when we show the corruption and the irredeemably challenged and overturned votes that are absolutely corrupt in all of these counties," she said. "It is irredeemably compromised. We will show that, but you have to give us that opportunity."
The campaign never did manage to "show that." Its lawsuits, none of which actually involved Ellis as counsel of record, were almost uniformly unsuccessful, and their claims bore little resemblance to the fanciful story that the "elite strikeforce team" was telling. Powell's lawsuits, which she filed independently after the campaign severed its relationship with her, did incorporate elements of that tall tale, and they were an even bigger flop. She eventually disowned the "kraken" she had repeatedly insisted would demolish the belief that Joe Biden had won the election.
In June 2021, a New York appeals court suspended Giuliani's license to practice law, based on his "demonstrably false and misleading statements." Two months later, a federal judge in Michigan ordered sanctions against Powell and eight other pro-Trump lawyers, calling her litigation "a historic and profound abuse of the judicial process." Now it is Ellis' turn.
Ellis' misconduct went beyond her implicit endorsement of Powell and Giuliani's claims at the November 19 press conference. The next day, she appeared on the Fox Business show Mornings with Maria. "We have affidavits from witnesses," she said. "We have voter intimidation. We have the ballots that were manipulated. We have all kinds of statistics that show that this was a coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret."
On Newsmax the same day, Ellis insisted that "we know that the election was stolen from President Trump and we can prove that." The next day on Twitter, she said "we will present testimonial and other evidence IN COURT to show how this election was STOLEN!" Two days later on MSNBC, she declared that "the election was stolen and Trump won by a landslide."
In another interview with Maria Bartiromo a week later, Ellis reiterated that "when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide." She was back again on December 3, saying "the outcome of this election is actually fraudulent" and "President Trump actually won in a landslide." In subsequent interviews and a tweet, Ellis falsely asserted that "we have over 500,000 votes that were cast illegally" in Arizona, described Trump as "the proper and true victor," and claimed to have "overwhelming evidence proving this [election] was stolen."
In a statement she posted on Twitter this morning, Ellis complains that "the politically-motivated Left" is "trying to falsely discredit me by saying I admitted I lied." Not so, she says: "I would NEVER lie. Lying requires INTENTIONALLY making a false statement." The rule she admitted to violating, she notes, refers to "conduct involving dishonesty, fraud, deceit or misrepresentation."
According to Ellis, a former Colorado prosecutor and defense attorney who has misrepresented herself as a "professor of constitutional law" and a "constitutional law attorney," she did not lie after the 2020 election. She just credulously accepted and repeated outlandish claims that she insisted were supported by "overwhelming evidence," even though that evidence did not exist, as she now concedes.
"The facts matter," Ellis declared at the November 19 press conference. "The truth matters." Except when it doesn't.
The post Censured for 'Misrepresentations' About a 'Stolen' Election, a Former Trump Lawyer Insists She Never Lied appeared first on Reason.com.
]]>A Colorado school administrator will no longer face child pornography charges for investigating a student sexting incident, a local judge ruled late last month, ending a legal odyssey that raised broader questions about prosecutorial discretion, overcriminalization, law enforcement accountability, and coercive plea bargaining.
Bradley Bass of Brush, Colorado, was facing up to 12 years in prison, a spot on the sex offender registry, and an end to his career. But that potential punishment never fit the alleged crime, particularly when considering that no one involved in the case, including the prosecution, posited Bass meant any harm when he conducted a probe in accordance with school board policy.
There was "no evidence of deceit or concealment," wrote Morgan County District Court Judge Charles M. Hobbs, and "no improper motive." That was clear from the start of the case, though it didn't deter prosecutors.
Last year, Bass learned that explicit images of a female student were circulating among male students. School Resource Officer (SRO) Jared Barham first received that tip; he was temporarily working nights and declined to investigate or share the information with other officers.
So Bass investigated the complaint. "The school administration prioritized this as a high-priority matter, because their concerns are [the] best interests of the students," says Michael Faye, who represented Bass. "He basically did the officer's work for him."
Bass' probe turned up risqué pictures saved in Snapchat, a photo-sharing app where images typically disappear after receipt. To collect evidence, he took pictures of the photos on his work cellphone, uploaded them to a school server, and says he told the boys to delete the images. A forensic investigation concluded that Bass did not access the photos after the fact, and the female student in question maintained that Bass did nothing wrong.
He was arrested, booked at the Morgan County Detention Center, and charged with four counts of sexual exploitation of a child anyway. There's an interesting carve-out to that law: It "does not apply to peace officers or court personnel in the performance of their official duties." Put differently, Barham opted not to do his job, so Bass was arrested for doing it for him. It wasn't necessarily an outlier moment. "We had testimony at the hearing that this SRO had multiple times stated to different teachers, 'Hey, it's easier if you guys do this kind of stuff. If I get involved, it takes it up a notch, and it's easier if I come in after the fact,'" says Faye. "So that was kind of the underlying premise here."
At its core, the case around Bass was more about prosecutorial discretion than it was about child pornography. The law the government used to prosecute Bass has an immunity statute, which provides that someone acting in accordance with school board policies is protected from civil and criminal prosecution. This would seem a fairly clear-cut example of that.
Prosecutors disagree. "From the beginning and it still troubles me now: We had a school administrator that knowingly kept nude images of a juvenile student on his phone," 13th Judicial District Attorney Travis Sides told The Colorado Sun. "So in other words, he could pull up that image whenever he wanted to, anytime a day or night."
Perhaps it should matter to Sides that forensics concluded Bass never pulled up the images and only took them in the absence of the school police officer doing his job. And perhaps it did matter to the government, despite their public statements. Had Hobbs not thrown out the case in accordance with the law, the government had offered Bass a "deal": Plead guilty to obstructing justice, and the case would go away.
That may sound like a nice bargain. Consider, however, what the implication is: Bass would face up to 12 years in prison and a slew of other life-altering consequences for exercising his Sixth Amendment right to trial after the government made clear with its deal that such a severe punishment was not necessary. That sort of over-charging is common and gives prosecutors leverage to coerce guilty pleas—even from people who aren't guilty.
It's a practice some say is unconstitutional. In Maricopa County, Arizona, for instance, defendants are given a plea deal and told in fine print that they will face significantly more time behind bars if they merely want to review the state's evidence against them or attend a preliminary hearing. One such defendant, Michael Calhoun, was given a nine-year plea deal offer for selling about $20 worth of drugs and told that if he did not accept it outright, he would face a "substantially harsher" fate. He sued in 2021, challenging the legality of that approach.
Bass may relate more with another defendant in Maricopa County, Levonta Barker, who received a plea deal offer for aggravated assault and kidnapping. Barker, too, was told that reviewing the evidence or attending a probable cause hearing would cost him. That's unfortunate for many reasons, most notably because he was innocent—something the Maricopa County Attorney's Office was forced to admit after Barker had already spent a month in jail.
With such a wide separation between plea deals and the punishments meted out after trial, defendants have to decide if exercising their constitutional right to a trial by jury is worth the risk. "The plea they're offering potentially lets me stay as a husband and a dad, and to me those are the biggest priorities in my life," Bass said. "I basically need to choose: Do I want to clear my name and risk losing my entire life, or do I want to not clear my name but not lose my life?"
Bass will no longer have to make that choice. But whether or not he will ever clear his name is debatable. "The accusation carries such a stigma that people are always going to wonder. So no matter what he does, no matter what court rulings we got, I don't think he ever recovers from this," says Faye. "That's always been the thing that really strikes me about the system is just…how much power and discretion the prosecutor has."
The post Is Investigating a School Sexting Incident the Same as Possessing Child Porn? A Judge Says No. appeared first on Reason.com.
]]>As housing costs mount in cities across the country, an increasingly popular idea is converting urban golf courses into new homes. On paper, it seems like a great plan.
Golf courses often take up a tremendous amount of prime real estate for a sport only few people play. Meanwhile, developers and policy makers alike are keen to site new housing on land that doesn't involve the expensive and often politically fraught prospect of tearing down existing homes or businesses.
But the idea of repurposing putting greens for people is easier said than done, as evidenced by a bitter, years-long battle over the redevelopment of a private golf course in Denver, Colorado.
In Denver's Park Hill neighborhood, sits a shuttered 155-acre private 18-hole golf course that hasn't had a game played on it since 2018. The owner of the site, real estate company Westside, would like to turn the disused course into a mixed-use, mixed-income neighborhood featuring thousands of new homes, businesses, and a public park.
Doing so, they say, will help ease Denver's ease mounting housing affordability pressures while also gifting the city what would be Denver's fourth largest park. One 2022 report found that the Denver metro area had produced 69,000 fewer units than it needed.
"We have an actual plan with clarity around what we're going to do and commitments in terms of community benefits and a financing mechanism to do that," says Kenneth Ho, a principal at Westside.
It's a plan that's won the support of local YIMBY activists, affordable housing developers like Habitat for Humanity, and a majority of the Denver City Council.
"It's an abandoned golf course right now," says Tobin Stone, an activist with the housing advocacy YIMBY Denver. "The working class cannot afford to live in Denver right now. The best thing we can do is approve every big development that comes before us."
But not everyone is so keen on big development.
Opposing Westside's project is a motley crew of neighborhood activists, former Democratic lawmakers, and Denver's one socialist city councilmember. All are fighting tooth and nail to stop new housing from popping up on the site. Instead, they're demanding that all the golf course land, instead of a mere majority of it, remain as open space.
"The environmental impact of developing on green space instead of walking across the street and developing those hundreds of acres made no sense whatsoever," Harry Doby, who resides near the Park Hill site and is an activist with the group Save Open Spaces (SOS) Denver.
Come April, city voters will decide in a referendum whether the Park Hill golf course will be redeveloped into homes and businesses, or if it remains a disused golf course.
Supporters and opponents are both hoping it will be the last word in a fight over the golf course's future that's been raging since 2019.
It was that year that Westside purchased the property. The plan had always been to transform the site into a mixed-use development in a rapidly growing area of Denver. Over the course of the next three years, it worked closely with the city government to hash out a detailed development plan for the site.
Their vision is to turn 55 acres of the 155-acre public golf course into 3,200 units of housing plus commercial and retail space. At least a quarter of the new homes, per Westside's development agreement with the city, will have to be income-restricted units offered at below-market rates.
Westside is also agreeing to donate 80 acres of the site to the city, and dedicate the remaining acreage to parks and open space.*
The one major roadblock to Westside's plans is a 25-year-old conservation easement. In 1997, Denver paid the former owner of the site, Clayton Trust, $2 million to agree to keep the land as a golf course.
Putting new housing on the Park Hill site requires the easement to be lifted.
Westside's efforts to eliminate it have kicked up a storm of controversy from neighbors who've made a panoply of arguments against building on the old golf course.
Doby argues that developing the Park Hill site will be a huge loss for the environment. "In a climate crisis, in a heat island with a deficit of trees, you don't cut them down and build on top of it. Not when you have alternatives that are equal and better," he says, saying development would be more appropriate on nearby industrial properties.
These arguments have resonated with current and former elected officials and the city's major daily newspaper.
Denver City Councilwoman Candi CdeBaca, a member of the Democratic Socialists of America, has also criticized Westside's development in various venues for its alleged environmental harms and for spurring gentrification.
The Denver Post has also come out against the project in a recent editorial in which it argued the city's plan to lift the easement amounted to a "sweetheart deal" for Westside. The added development potential would massively increase the value of the company's land far in excess of the community benefits they've agreed to provide, argues the Post.
It's an argument that ignores the communitywide benefits of adding housing to the city. By the Post's logic, the city also massively underpaid the former Park Hill owner to accept the conservation easement given how much development potential it cost them.
Nearly a dozen former Democratic state legislators and former city elected officials have come out against the project as well.
Those former officials have joined as plaintiffs in two separate lawsuits filed by SOS Denver. Both suits argue that a court order is required to dissolve the Park Hill conservation easement, and that city actions preparing for development on the site are therefore illegal.
The first such lawsuit was quickly dismissed in early 2022, with a Denver District Court judge ruling that the plaintiffs lacked standing and a court order is not in fact required to lift the easement covering Park Hill.
SOS Denver's second, very similar lawsuit, which is again joined by several former elected officials, was filed two weeks ago. The plaintiffs are being represented by Tierney Lawrence Stiles, LLC, a self-described "progressive" law firm that specializes in representing nonprofits.
While critics of the Park Hill development have so far failed in court and at city hall, they have had more luck at the ballot box.
In 2021, SOS Denver placed an initiative on the Denver ballot that would require the lifting of conservation easements to be put to a public vote. It passed with an overwhelming 64 percent of the vote. A Westside-backed ballot initiative that would have effectively exempted their property from this referendum requirement failed by a similarly wide margin.
In late January 2023, the Denver City Council considered whether to approve Westside's Park Hill project and send the issue to voters. It became a heated clash of visions between supporters and critics of the development.
Opponents re-upped their arguments that the city would be losing irreplaceable open space by moving ahead with the development, all just to placate a wealthy developer.
"No one is talking about how potentially 10,000 new residents will impact traffic and quality of life," said one opponent. Westside's promise to keep half the site as open space "would be like living with half a lung," said another.
"See if you see anyone tonight say 'gosh I can't wait for 12-story buildings across from my house'," said one project opponent during the hearing. "I can't wait for 12-story buildings to be honest," Stone shot back during his time at the mic in a now-viral Twitter exchange.
Genuinely one of my proudest moments. https://t.co/BLuhZVKSn0 pic.twitter.com/8iEPiZR0FQ
— Tobin Stone (@tobinjstone) January 24, 2023
Other project supporters argued that building housing for people should be the city's priority, not preserving open space. "I hear people talking about birds. I love birds. But they're not more important than putting roofs over people's heads," said one woman in attendance.
These arguments proved convincing enough for most of the city council. The three holdouts included councilmembers Amanda Sandoval, Paul Kashmann, and CdeBaca, the latter raising a long list of objections at the January hearing. Westside would build units too fast and exceed the infrastructure needed to support it, she argued. She also said Westside would build units too slowly, meaning that rapidly rising incomes would erode the affordability gains from the project's income-restricted units (whose rents and sale prices are based on the area's median income).
"This is absolutely not a rezoning I would support even if the affordably is real," CdeBaca concluded.
Those complaints notwithstanding, the city council voted 10–3 to put the Park Hill development before voters.
Doby, who is also treasurer of the "no" campaign, says he expects voting residents will see the Westside project for the raw deal that it is and shoot it down.
"It's a bad deal for Denver because we're giving away what we now know is more like 100 and something million dollars of development rights," he says. "We get no compensation for that other than 'oh great you can rent an apartment on what used to be a golf course.'"
Ho counters that if their development plan is rejected, the land will just go back to being a closed golf course that benefits no one.
"If we go back to a golf course, no one would be able to access it without paying a fee and walking around hitting a white ball toward a hole," he says.
Correction: The previous version of this article misstated the nature of the open space called for in the development agreement between Westside and the city.
The post Ex-Lawmakers, Socialist City Councilmember Fight Putting New Housing on Shuttered Denver Golf Course appeared first on Reason.com.
]]>Last year, a man ended up dead at the hands of a Colorado sheriff's deputy in an after-school pickup line. His alleged crime: accidentally getting into the wrong car.
On February 22, 2022, Pueblo County Deputies Charles McWhorter and Cassandra Gonzales were dispatched to Liberty Point International Middle School. According to an October letter from Pueblo County District Attorney J.E. Chostner, a call came in after school let out of "a suspicious male party trying to open car doors." The caller further said the man, 32-year-old Richard Ward, had gotten "aggressive" with one car's occupants and may have been "on something."
When deputies arrived, they approached Ward, sitting in the back of his mother's white Lexus SUV. According to body camera footage released as part of the family's lawsuit against the county and five sheriff's officials, Ward tells deputies that he's nervous because he has anxiety and has had negative encounters with police. As Ward looked for an ID, he placed something in his mouth, at which point McWhorter yanked him out of the car by his jacket and onto the ground. Ward protested, "It was a pill!" as both deputies tried to place him in handcuffs.
McWhorter drew his gun during the scuffle and fired three shots; according to Chostner's letter, Ward was struck in the throat, chest, and collarbone. As Ward rolled over onto his back and his mother screamed, "Is my son shot?!" from the front seat, Gonzales yelled for Ward to "stop moving!" The deputies called for paramedics but did not attempt to render aid, leaving Ward bleeding on the pavement while forcing his mother to stay in the vehicle.
The encounter, from approaching the car to shooting Ward three times, took less than two-and-a-half minutes, all within view of middle school students and their parents. Ward was pronounced dead when paramedics arrived.
In a press conference later that day, Sheriff David Lucero said, "The person jumped out of the vehicle and had immediate contact with our deputies." Even in those early stages, this was verifiably untrue: During the body cam footage moments after the shooting, McWhorter tells a bystander, "He was trying to break into stuff, we made contact, he was stuffing stuff in his mouth and trying to turn on us, so I pulled him out."
The incident for which school officials initially called authorities involved Ward "trying to get into other cars in the parking lot." According to a police interview with his mother, Ward "become antsy" waiting for his little brother. Tommy Brown, Ward's mother's boyfriend and the car's driver, said Ward "was having an off day" and got out of the car to smoke a cigarette. Brown said Ward was on medications for bipolar disorder, attention deficit hyperactivity disorder (ADHD), and severe anxiety. When he returned to the car, he accidentally went to the wrong vehicle.
In the body camera footage, deputies ask Ward about going to the wrong car, to which he responds, "I straight-up thought that was my car. I thought it was my mom, I was yelling at her… I don't even know that lady" in the other car. When he realized his mistake, "I was like, 'Lady, I'm sorry, I did not mean'" to go to her car.
The incident that prompted McWhorter to get physical was when Ward popped something into his mouth. Ward protested that it was a pill: According to Darold Killmer, the Ward family's attorney, it was likely an anxiety medication. Ward's autopsy report noted that two pills were found in his pockets, and the one that could be identified was determined to be an anxiety medication.
The sheriff's office claims that Ward tried to grab McWhorter's gun during the struggle, an allegation Ward's parents deny. But it's worth challenging whether the deputy needed to initiate physical contact in the first place.
"Defendant McWhorter could have ordered Richard to spit the pill out," according to the family's lawsuit. "He could have ordered him to step out of the car. He could even have ordered him to present his hands to McWhorter so as to address any concerns McWhorter might have had about that. McWhorter did none of these things."
The post Colorado Cop Kills a Man Who Accidentally Got Into the Wrong Car appeared first on Reason.com.
]]>Colorado considers repealing its ban on local rent control to combat mounting housing costs. A bill currently working its way through the state House of Representatives would give cities and counties the power to impose a cap on rent hikes of as much as 3 percent plus inflation on residential buildings that are at least 15 years old. "The rent is too high in Colorado, and that's not just for essential service workers," said state Rep. Javier Mabrey (D–Denver), per Colorado Public Radio.
Colorado prevents its local governments from adopting rent control, as do 30 other states.
Regulating rent increases is a policy long derided for failing to make housing affordable while disincentivizing the construction of new housing supply and worsening housing quality.
But a decade-plus of rising rents has seen more and more politicians falling prey to the always tempting idea that they can hold prices down without causing any ill effects.
Earlier this month, Boston Mayor Michelle Wu petitioned the city council there to revive rent control, which was repealed by state voters in the 1990s. New York's state legislature is considering a "Good Cause Eviction" bill, which is similar to rent control, that would allow tenants to challenge any rent increase. For rent increases of 3 percent or more, the burden of proof would be on the landlord to show that the increase was reasonable.*
In 2021, voters in St. Paul, Minnesota, passed what was largely considered the tightest rent control policy in the country, capping rent increases at 3 percent for effectively all housing. Developers fled town in response. The city quickly amended the policy.
Helping to rehabilitate rent control's image is a pair of "anti–rent gouging" laws passed in California and Oregon that capped rents at 5 and 7 percent respectively plus inflation, and allow unlimited rent increases on vacant units and buildings constructed in the last 15 years.
Old-school rent control policies from the 20th century typically banned rent increases entirely on existing housing units, or limited increases to well below the rate of inflation. Research on their effects has found they've generally reduced rental housing supply by encouraging the conversion of rental units to for-sale condos. Such laws have also led to deterioration in housing quality.
Proponents argue this new breed of "rent control 2.0" policies contain enough exemptions and allowances to avoid those past pitfalls, while still providing added stability for tenants.
Not everyone has been won over, however. Colorado Gov. Jared Polis, a Democrat, has criticized rent control, telling Colorado Public Radio in a statement that he's "skeptical that rent control will create more housing stock, and locations with these policies often have the unintended consequences of higher rent."
The governor's office is reportedly working on a state bill that would ease local restrictions on building new housing.
Another day, another case with big implications for internet free speech is at the U.S. Supreme Court. Today, the justices will hear oral arguments in the case of Twitter v. Taamneh. The case has its roots in a lawsuit brought by the family of a Jordanian man killed in an Islamic State terrorist attack under the Antiterrorism Act, which allows victims to sue those who "aid and abet" terrorist acts.
The family has accused Twitter of "aiding and abetting" the Islamic State by failing to be more aggressive in removing the group's propaganda from its site. In 2021, the 9th Circuit Court of Appeals allowed their lawsuit to proceed. Twitter is petitioning the Supreme Court to overturn that decision.
Although it hinges on a different legal issue, the case is very similar to the Gonzales v Google case that the Court heard yesterday, in which the family of a woman killed by the Islamic State was accusing YouTube (which is owned by Google) of abetting the terrorist group because its algorithm recommended terrorist content to users.
If the Supreme Court agreed with that position, "it would unleash a torrent of litigation and, in all likelihood, wreck the internet as we know it," wrote Reason's Damon Root yesterday.
In the wake of the East Palestine, Ohio, rail disaster, the Department of Transportation pushes regulations that wouldn't have prevented the accident. The Department of Transportation is demanding that freight rail companies adopt five industry-wide policies, including expanded whistleblower programs, maintaining human safety inspection of all trains (which they have been trying to automate), speeding up the adoption of safer tank cars, notifying state governments when hazardous chemicals are traveling through their territory, and providing paid sick leave.
National Review's Dominic Pino writes:
Looking closer at the department's proposals, safety does not seem to be the primary justification. Instead, they include demands that environmentalists and unions have made for years, and none of them would have prevented the East Palestine crash.
Read his full analysis here.
a brahmin socialist in seattle is proposing this, but the laws will be enforced by ppl who have no idea about caste which varies by region and religion.
also, i'm a dalit muslim from now on.https://t.co/LAXwyKsQ0q
— Razib ???? Khan ???? ???????? (@razibkhan) February 20, 2023
For all of you who took issue with the haters saying that we are past our prime… this one's for you.
We've got this. ????????????????
Order yours today: https://t.co/iGXhvfdzom pic.twitter.com/VIbPn6YcL7
— Nikki Haley (@NikkiHaley) February 21, 2023
CORRECTION: The original version of this article misstated which rent increases New York's Good Cause Eviction bill would allow tenants to challenge.
The post Colorado Is the Latest State To Consider Rent Control appeared first on Reason.com.
]]>Geraldine Tyler is a 94-year-old woman spending the twilight of her life in retirement, as 94-year-olds typically do. But there isn't much that's typical about it.
Tyler has spent the last several years fighting the government from an assisted living facility after falling $2,300 behind on her property taxes. No one disputes that she owed a debt. What is in dispute is if the government acted constitutionally when, to collect that debt, it seized her home, sold it, and kept the profit.
If that sounds like robbery, it's because, in some sense, it is. But it's currently legal in at least 12 states across the country, so long as the government is doing the robbing.
In 2010, Tyler moved out of her Minneapolis condo, which she owned, in response to a series of local incidents that made her feel unsafe. That included a nearby shooting. She relocated to an apartment in a different neighborhood but struggled to afford both her rent and the property taxes on her condo, accruing that $2,300 sum.
The vast majority of what Tyler ended up owing, however, was not the property tax itself. It was the additional $13,000 in penalties, interests, and fees added by the government, upping her total to about $15,000—more than a 550 percent increase.
She didn't have the $2,300, much less the $15,000. So the state foreclosed on the condo and sold it to satisfy the debt. That's to be expected. What Tyler didn't expect: After selling the property for $40,000, the government pocketed the remaining $25,000 instead of putting it back in Tyler's hands. This despite no party claiming she owed anywhere near a $40,000 debt.
What the state took had little to do with the amount of debt itself. Had Tyler's condo been valued at, say, $300,000, it would have proceeded the same way. The government would have just been quite a bit richer.
Which is what happened to Tawanda Hall of Oakland County, Michigan, when she, too, accrued a property tax debt. Hall, who lived in the house with her husband and children, set up a payment plan with the local authorities. She eventually fell $900 behind schedule. The total bill—after penalties, interests, and fees—came out to $22,642.
Not unlike Tyler, the government then seized the home, sold it to collect the debt, and kept the profit. Unlike Tyler, the Halls' home was worth more than $300,000.
The state kept the change. It totaled more than $286,000.
What also sets Tyler and Hall apart is that they've had different fortunes in front of federal judges. But that may change for victims of home equity theft everywhere as one received notice on Friday that she will get to make her case in front of the U.S. Supreme Court.
It is standard practice for governments to seize properties whose owners fail to pay their taxes. People at city council meetings across the U.S. will debate just how much those taxes should be—they vary widely—or how much local treasury departments should be tacking on in interests and penalties for those who fall behind.
But neither Tyler nor Hall have argued against such a taking.
"We agree that the government can seize the property to collect a debt," says Christina M. Martin, a senior attorney at the Pacific Legal Foundation who has represented both women. "What it can't do is take more than it's owed."
Whether or not you'll meet such a fate, should you fall behind on your taxes, depends on where you live. Among the states that allow home equity theft—when the government not only satisfies the debt but also keeps the profit—are Oregon, Arizona, Colorado, Nebraska, South Dakota, Minnesota, Illinois, Alabama, New Jersey, New York, Massachusetts, and Maine. That list used to be longer. Several states have abolished it.
But the process by which the government steals home equity also looks different in those states that permit it. "In Nebraska…people are shocked about how the law actually operates," says Jennifer Gaughan, chief of legal strategy at Legal Aid of Nebraska, which has represented clients similarly situated to Tyler and Hall. In that state, people who fall behind on their property taxes are bought out, without their knowledge, by private investors. They receive no correspondence.
That changes after three years go by, when they finally get notice in the mail. Included in that letter is that they have 90 days to satisfy the tax burden, the 14 percent interest, and additional fees. It's a Herculean task for individuals and families to accomplish when considering they were struggling to pay the original debt, much less a multiyear accumulation and the associated penalties. If they fail to pay within the short period, the county treasurer gives the deed to the private investor, who then takes the home, sells it, and keeps the change.
Nebraska isn't the only state with an unsavory public-private partnership, which is a distinguishing factor in how states execute home equity theft. Arizona and Illinois, for example, operate similarly, allowing investment companies to do the government's work for them. The prize is someone's home equity. That's contrasted with states like Minnesota, where Tyler lives, which sees stolen equity deposited into government coffers.
"It's usually elderly people…people who own their homes outright who don't have a mortgage, and there's usually some kind of intervening situation," says Gaughan. "It's not just poverty. It's illness, or something happens in their lives….And then they don't have notice of it. And then [the home] is being taken."
In other words, home equity theft targets the most vulnerable people simply by the nature of how it operates. If you fall behind on your taxes, then it stands to reason that you are low-income, or dealing with a life-altering event, or both. Someone unable to pay a tax debt is unlikely to be able to pay that same debt plus the litany of fines and fees that expand it multiple times over. And someone in such a situation will be even more crippled when their last remaining asset is taken from them—their house—and the profits kept. If you didn't have enough money in the bank to pay your taxes, then you probably don't have enough money in the bank to buy a new house.
"I had one person tell me they were suicidal because they lost everything they worked for," says Martin. "It's hard enough to lose your home, but when you lose all your life savings, that's just beyond devastating. It's completely shocking. It often destroys people."
At the core of home equity theft cases is the Takings Clause of the Fifth Amendment to the U.S. Constitution. "Nor shall private property be taken for public use," it reads, "without just compensation." It would seem fairly straightforward.
It has not been.
Tyler's case arrived before the U.S. Court of Appeals for the 8th Circuit in October 2021. The question before the judges: Was it constitutional when the government seized the 94-year-old's Minnesota condo valued at $93,000, sold it for about half of that, and then kept every last cent, all to satisfy a $15,000 debt?
The answer they arrived at was yes. "Where state law recognizes no property interest in surplus proceeds from a tax foreclosure-sale conducted after adequate notice to the owner," wrote Judge Steven Colloton, "there is no unconstitutional taking."
In other words, according to the 8th Circuit, Tyler—and the many people also in her shoes—simply have no recourse when the government profits off of their poverty. "In every other debt collection context, the debt collector is only allowed to take what is owed, plus the cost of collecting the debt. But here, the government gets to tack on penalties, interests, fees, and then they get to take everything that's left over after that?" asks Martin. "That can't be right."
Maybe it can't be. Hall—the Michigan resident who saw almost $300,000 taken from her in excess—also sued. She wishes it didn't have to go that far. "[I was] running around trying to find out who can I talk to, what can I do to stop this from happening?" Hall tells Reason. "There was really no one there to work with us or help us or even tell us what route to go." Her case fed into the U.S. Court of Appeals for the 6th Circuit, and she was joined by seven other parties who had also met that grisly fate. Would the judges rule similarly?
They did not, and their opinion spared no prisoners. "The Michigan statute is not only self-dealing: it is also an aberration from some 300 years of decisions by English and American courts, which barred precisely the action that Oakland County took here," wrote Judge Raymond Kethledge. "The government may not decline to recognize long-established interests in property as a device to take them."
Hall was lucky, although that word feels perverse here. The court ruled that her suit had been prematurely dismissed, and it resuscitated her claim. But she still has to go before a trial court and win to get her six figures in equity back. "We all have problems sometimes and fall behind," Hall says. "To take someone's home…to have them homeless because of a little late payment I think is unfair."
There are some things she cannot get back, however. Her husband, Prentiss, had pneumonia when they lost their home. He rushed back to his job after the government took the entire value of their house—depriving them of their life savings, in other words—though he was still too sick to be there. At work, he fell on his head, sustained a severe brain injury, and died.
For the last several years, it has been unclear if Tyler will see an end to her case or if her legal challenge—with the bureaucratic hurdles that prolong such disputes for years—will outlive the 94-year-old.
She got closer on Friday, when the U.S. Supreme Court agreed to hear her appeal, giving the highest rung of the judiciary the opportunity to end home equity theft for everyone.
"This case identifies a pressing national problem that has festered for decades in the lower courts," reads her petition. "This Court should put the controversy to rest."
Tyler is not alone in her challenge. She has attracted the support of advocates of diverse professional affiliations and backgrounds. Those who have filed briefs in support of her include the National Taxpayers Union Foundation, the Howard Jarvis Taxpayers Association, the Wisconsin Realtors Association, AARP and the AARP Foundation, the Buckeye Institute, the Competitive Enterprise Institute, and the Cato Institute, among others. There aren't many things that unite people these days. Perhaps outright government theft meets that bar.
"We're not asking for anything unusual here," says Martin, who will be arguing the case in front of the high court. "We're asking that the government not [receive] self-dealing, preferential treatment that allows them to just take a massive windfall, usually at the expense of the most vulnerable people."
Should Tyler win, it would be a fitting metaphor for justice: a 94-year-old woman who had everything taken from her and who, in the last big fight of her life, toppled that giant.
The post They Fell Behind on Their Property Taxes. So the Government Sold Their Homes—and Kept the Profits. appeared first on Reason.com.
]]>The Denver sheriff's office has suspended Deputy Daniel Rodriguez for 10 days, with seven of them suspended, for using excessive force on a man being booked into the jail. Rodriguez reportedly broke the man's wrist with nunchucks when the man fought with deputies. The sheriff's office has also barred deputies from carrying nunchucks.
The post Brickbat: A Real Ninja appeared first on Reason.com.
]]>A decade ago, Colorado became the first state to legalize marijuana for recreational use, something 20 other states have done since then. Colorado set a new precedent for drug policy reform in November, when its voters approved a ballot initiative that decriminalizes a wide range of conduct related to consuming five natural psychedelics.
Proposition 122 also authorizes state-licensed "healing centers" where adults 21 or older can obtain and use psychedelics. It represents the broadest loosening of legal restrictions on psychedelics the United States has ever seen.
The 2022 elections contributed to the ongoing collapse of marijuana prohibition. Voters in Maryland and Missouri approved recreational legalization, raising to 21 the number of states that let adults consume cannabis without a medical justification. At the same time, voters in three red states that allow medical use—Arkansas, North Dakota, and South Dakota—declined to go further.
Despite those setbacks, recognizing marijuana as a medicine generally has paved the way to broader liberalization. Starting with California in 1996, 37 states have allowed patients to use marijuana for symptom relief, and most of them eventually legalized recreational consumption as well.
The Proposition 122 campaign built on that model by describing five psychedelics found in fungi and plants as "natural medicine." But that designation is inherently ambiguous, and the initiative goes far beyond allowing the use of psychedelics in drug-assisted psychotherapy.
Proposition 122 defines "natural medicine" to include psilocybin, psilocyn (another psychoactive component of "magic mushrooms"), dimethyltryptamine (DMT, the active ingredient in ayahuasca), ibogaine (a psychedelic derived from the root bark of the iboga tree), and mescaline (the active ingredient in peyote). The initiative notes that "natural medicines have been used safely for millennia by cultures for healing." It adds that "an extensive and growing body of research" supports "the efficacy of natural medicines combined with psychotherapy as treatment for depression, anxiety, substance use disorders, end-of-life distress, and other conditions."
Those observations echo the arguments that persuaded Oregonians to approve a groundbreaking 2020 initiative that will allow adults to consume psilocybin at state-approved "service centers." But neither initiative requires that the customers of such businesses have any particular medical or psychiatric diagnosis. That's a crucial deviation from the usual regulatory approach, which charges the Food and Drug Administration with deciding what counts as medicine and appoints doctors as gatekeepers.
Proposition 122 goes further. It covers a wider range of psychedelics than Oregon's law does, and it does not limit their legal use to supervised settings. Colorado's initiative eliminates criminal and civil penalties for producing, possessing, transporting, and obtaining those substances "for personal use." It also allows noncommercial sharing.
"Healing" is a capacious category that can include all manner of self-exploration, psychological insight, and personal development, as well as formal therapy overseen by mental health professionals. "Personal use" is broader still, encompassing psychedelic consumption for any reason, including curiosity and entertainment.
The Denver Post's editorial board understood the implications of Proposition 122's decriminalization provisions and drew back in horror. The initiative "goes too far, too fast for Colorado," the Post warned a week before the election.
The editorial acknowledged evidence that psychedelics "can help treat debilitating post-traumatic stress disorders, treatment-resistant depression, severe anxiety, and other mental illness." But "while the intent of legalizing possession and cultivation is for medical treatment," it said, "we fear a robust market for recreational use would thrive. Increased legal tolerance will increase demand, which will increase the temptation for profiteering."
In the Post's view, increased tolerance is bad because people might use psychedelics for fun. Judging from the election returns, Coloradans decided that was a nightmare they could live with.
The Post sounded like Protect Colorado's Kids, the main group that opposed Proposition 122. "Colorado is high enough," it declared. "Leading scientific authorities like the American Psychiatric Association think this is not the time to experiment so openly with these drugs."
These critics take it for granted that the government should guard the doors of perception, lest people open them for frivolous reasons. That mission includes banning psychoactive fungi and plants that humans have consumed for thousands of years. It also includes arresting, prosecuting, and incarcerating people who dare to grow, possess, or distribute those naturally occurring trip triggers. Proposition 122 points the way to a different approach by restoring some of the pharmacological freedom Americans have lost to mind-controlling politicians.
The post Colorado Voters Delivered a Win for Pharmacological Freedom appeared first on Reason.com.
]]>The Colorado Public Utilities Commission has passed rules that could make it more difficult and more expensive to build new natural gas pipelines or extend existing ones in the state. The rules require regulators to sign off on any pipeline construction plans by natural gas utilities with more than 90,000 customers. Utilities would have to pay the full costs of pipelines up front. Democratic Gov. Jared Polis has set a goal for natural gas utilities to reduce greenhouse gas emissions by 4 percent by 2025 and by 22 percent by 2030.
The post Brickbat: Bad Gas appeared first on Reason.com.
]]>Colorado voters last month approved a groundbreaking ballot initiative that decriminalized five psychedelics derived from fungi or plants: psilocybin, psilocyn (another psychoactive component of "magic mushrooms"), dimethyltryptamine (DMT, the active ingredient in ayahuasca), ibogaine (a psychedelic derived from the root bark of the iboga tree), and mescaline (the active ingredient in peyote). This month a California legislator introduced a bill, S.B. 58, that emulates Colorado's new policy, aiming to legalize the possession, preparation, noncommercial transfer, and transportation of those five drugs by adults 21 or older.
That bill's sponsor, state Sen. Scott Wiener (D–San Francisco), unsuccessfully tried something similar last year. It's not clear whether the new bill will have a better chance in 2023. But polling indicates that California voters are receptive to the idea, which builds on a series of reforms in other jurisdictions that suggest psychedelic prohibition could collapse faster than marijuana prohibition did, thanks largely to recent research on the potential benefits of these drugs.
"Research from top medical universities shows that these substances can have significant benefits, particularly for treating mental health and substance use disorders, and decriminalizing their personal use is part of the larger movement to end the racist War on Drugs and its failed and destructive policies," Wiener said when he unveiled S.B. 58. "This legislation follows similar, successful local efforts to decriminalize these substances in Washington, D.C., Oakland, San Francisco, and Santa Cruz, as well as successful Oregon and Colorado ballot measures."
The cities that Wiener mentioned are among the local governments that have prohibited or discouraged arrests of psychedelic users in recent years, beginning with a psilocybin initiative that Denver voters approved in 2019. Similar measures have been enacted in Detroit, Seattle, and Ann Arbor, Michigan. The local measures did not actually legalize psychedelic use. S.B. 58, by contrast, would change state law so that people engaging in the covered activities are no longer subject to criminal or civil penalties.
The range of substances covered by these measures varies from jurisdiction to jurisdiction. The Denver initiative, which has since been superseded by statewide psychedelic decriminalization, applied only to psilocybin. So does the 2020 Oregon initiative, although voters in that state simultaneously approved a measure that made low-level possession of all drugs a civil offense punishable by a $100 fine.
Oakland's 2019 ordinance and the initiative that Washington, D.C., voters approved in 2020 cover the same five substances as S.B. 58 and Colorado's Proposition 122. The resolution that the Santa Cruz City Council approved in 2020 and the ballot initiative that Detroit voters passed last year apply to "entheogenic plants." Seattle's 2021 resolution encompasses "any living, fresh, dried, or processed plant or fungal material, including teas or powders, that may contain currently scheduled or analog psychoactive indolamines, tryptamines, or phenethylamines, including, but not limited to, psilocybin mushrooms, ayahuasca tea, mescaline, and iboga."
Wiener last year introduced a decriminalization bill, S.B. 519, that included LSD and MDMA, synthetic drugs that are not covered by S.B. 58 even though both have been studied extensively. (MDMA, in fact, may be approved as a psychotherapeutic aid by the Food and Drug Administration within the next few years.) The narrower approach that Wiener is taking with his new bill looks like a concession to the sentiment in favor of "natural medicine," the term used in Proposition 122.
S.B. 519, which originally would have made it legal to obtain, possess, transport, and share the listed psychedelics, was amended to merely mandate a study of that proposition. That version got as far as a second reading but never got a final vote.
Unlike the Oregon and Colorado initiatives, S.B. 58 would not authorize state-licensed businesses where people can obtain and use psychedelics. But it would remove the threat of arrest or prosecution for users of the covered psychedelics, and it would allow noncommercial production and sharing. It imposes limits of two grams for psilocybin or psilocyn, four grams for fungi containing psilocybin or psilocyn, two grams for DMT, 15 grams for ibogaine, and four grams for mescaline. Like Proposition 122, it does not cover peyote itself.
Under current California law, possessing psilocybin mushrooms for personal use is a misdemeanor punishable by a maximum fine of $1,000 and up to a year in jail. Possession with intent to distribute is a felony punishable by up to four years in prison. Cultivation can be charged as a misdemeanor or a felony. Penalties for offenses involving other psychedelics are similarly severe. Even giving away psilocybin, psilocyn, DMT, mescaline, or ibogaine—all of which are listed, along with LSD, in Schedule I of California's Uniform Controlled Substances Act—is punishable by up to four years of incarceration.
"Psychedelics have tremendous capacity to help people heal, but right now, using them is a criminal offense," Wiener says. "These drugs literally save lives and are some of the most promising treatments we have for PTSD, anxiety, depression, and addiction. We need to end the outdated, racist, failed War on Drugs and finally pursue drug policies that help people instead of incarcerating them."
A proposed California initiative that would have legalized psilocybin and psilocybin mushrooms, including commercial production and sales, did not qualify for this year's ballot. But a 2022 poll by FM3 Research found that 58 percent of California voters favored legislation that would eliminate criminal penalties for "adults found to be in possession of small, personal-use amounts" of psychedelics and "create an opportunity for people to get access to licensed therapeutic treatment with psychedelic medicines."
That question was preceded by this information: "Psychedelic substances such as psilocybin mushrooms and MDMA are currently illegal. However, growing evidence from leading medical research institutions such as Johns Hopkins, UCLA, and New York University suggests that they can be very effective in treating mental health conditions like PTSD, anxiety, and depression."
Wiener's argument for S.B. 58 echoes this medical framing, which is similar to the way the Oregon and Colorado initiatives were presented. While opponents of the war on drugs might object to such seemingly narrow justifications (along with the special pleading for a particular class of drugs), none of these measures requires that adults who want to use psychedelics have a particular medical or psychiatric diagnosis. And the experience with marijuana shows that emphasizing a drug's therapeutic potential can pave the way for broad legalization.
Compared to the gradual collapse of marijuana prohibition, psychedelic policy seems to be shifting remarkably fast. While states began banning cannabis a century ago, culminating in the Marihuana Tax Act of 1937, prohibition of psychedelics was enacted in the late 1960s.
States began decriminalizing marijuana use, which typically meant making low-level possession a civil offense punishable by a modest fine, in the 1970s. California became the first state to legalize the medical use of cannabis in 1996, two decades later. Then 16 years elapsed before Colorado and Washington became the first states to legalize recreational use.
Denver voters approved a ballot initiative making marijuana possession arrests the city's lowest law enforcement priority in 2007, five years before statewide legalization. Denver's similar initiative dealing with psilocybin passed just three years before Colorado voters decriminalized consumption of five psychedelics, along with related activities, and two years after Oregon became the first state to legalize psilocybin.
Given the long history of incremental cannabis reforms, I did not expect marijuana legalization to happen as soon as it did. I was surprised again by the seemingly sudden success of psychedelic reform in Oregon and Colorado. But maybe Americans, despite their general resistance to principled thinking about public policy, have learned something about the folly of trying to dictate which psychoactive substances people may consume, especially when that legal regime transforms naturally occurring intoxicants into contraband.
The post California Bill Builds on Reforms That Could Herald the Surprisingly Fast Collapse of Psychedelic Prohibition appeared first on Reason.com.
]]>The ACLU has filed a lawsuit on behalf of Ruby Johnson, 77, whose home was raided by a Denver SWAT team looking for stolen items after her house was pinged as the location of a stolen iPhone by the "Find My" app. According to a copy of the affidavit police used to obtain the warrant, the iPhone's owner told officers the app indicated Johnson's home as its location. The lawsuit said that police did not independently confirm the stolen items were at the home. And, according to reporters who have seen the affidavit, the area identified on the app as the location of the phone actually spanned four blocks and included six properties.
The post Brickbat: Close Enough for Police Work appeared first on Reason.com.
]]>Lorie Smith is a conservative Christian and a website designer who thinks she should be able to engage in her chosen occupation without compromising her moral beliefs. But that is illegal in Colorado, where Smith is forbidden to create websites for heterosexual weddings unless she is also willing to create websites for gay weddings.
The Colorado Anti-Discrimination Act (CADA) simultaneously censors Smith by stopping her from announcing the principles that guide her work and requires her to express a message that contradicts those principles. The question for the Supreme Court, which heard Smith's case on Monday, is whether those commands are consistent with her First Amendment right to freedom of speech.
Colorado and Smith agree that she is happy to serve any customer, regardless of sexual orientation, provided the work is consistent with biblical values as she understands them. In practice, both parties say, that means Smith "will decline any request to design, create, or promote content" that "contradicts biblical truth," "demeans or disparages others," "promotes sexual immorality," "supports the destruction of unborn children," "incites violence," or "promotes any conception of marriage other than marriage between one man and one woman."
Last year, the U.S. Court of Appeals for the 10th Circuit agreed with Smith that her custom website designs "are pure speech." It said Colorado's rules therefore amount to compelled speech as well as viewpoint-based speech restrictions, making them subject to "strict scrutiny."
That standard is very hard to satisfy. It requires that a challenged law be "narrowly tailored" to advance a "compelling" government interest, meaning that goal cannot be served through less restrictive means.
The 10th Circuit nevertheless concluded that CADA's application to Smith and her business, 303 Creative, passes constitutional muster because it is necessary to protect the "material interests" of "marginalized groups" in "accessing the commercial marketplace." That conclusion is puzzling.
As Smith's lawyers at the Alliance Defending Freedom note in their Supreme Court brief, "hundreds of other website-design companies operate in Denver alone." So even if Colorado allowed Smith to specialize in opposite-sex weddings, gay couples would have plenty of alternatives.
According to the 10th Circuit, that's not good enough. "For the same reason" that Smith's bespoke website designs qualify as speech, it said, they are "inherently not fungible."
While same-sex couples would have lots of other options if Smith were permitted to run her business the way she wants, the appeals court reasoned, they would not have access to her unique work. In that respect, it said, Creative 303 is "similar to a monopoly."
That "monopoly of one" theory, which dissenting Judge Timothy Tymkovich called "unprecedented," "threatens every artist's control over her own speech, replacing speaker autonomy with the government's message," Smith's lawyers argue. By "declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored," First Amendment specialists Eugene Volokh and Dale Carpenter likewise warn in a Supreme Court brief filed by the Cato Institute, the 10th Circuit's analysis effectively eliminates "free-speech protection for providers of expressive products."
The implications are potentially sweeping. Under CADA, Tymkovich suggested, Colorado could force "an unwilling Muslim movie director to make a film with a Zionist message" or require "an atheist muralist to accept a commission celebrating Evangelical zeal." The state could "force Muslim filmmakers to promote Scientology or force lesbian artists to design church websites criticizing same-sex marriage," Smith's brief says.
Since some state and local laws prohibit commercial discrimination based on political activities or ideology, such legally mandated speech could go even further. "Under Colorado's theory," Smith's lawyer observed during oral argument on Monday, "jurisdictions could force a Democrat publicist to write a Republican's press release."
While such hypotheticals might seem fanciful, the underlying principle is the same. If the courts allow compelled speech in the name of protecting equal access to "places of public accommodation," supporters of those laws won't necessarily like the results.
© Copyright 2022 by Creators Syndicate Inc.
The post Colorado's Anti-Discrimination Law Forces Artists To Echo the State's Message appeared first on Reason.com.
]]>Colorado Gov. Jared Polis says his state's "red flag" law "could have been used" to prevent the November 19 mass shooting at a gay nightclub in Colorado Springs. "It's really up to the local law enforcement entity how to use it," Polis said during a Face the Nation interview on Sunday. "In cases like this, where somebody can potentially be a danger, and there are signs that they are a danger, we have a legal way to temporarily remove custody of any weapons they might have. And this is an example of a case where it might have been used."
Polis was alluding to a June 2021 incident in which Laura Voepel, the mother of the 22-year-old man now charged with murdering five people at Club Q, reported that he had threatened her with a homemade bomb. The governor said Voepel did not seek an "extreme risk protection order" (ERPO) against her son, which would have barred him from possessing or buying firearms. But since Colorado's red flag law also authorizes police to ask judges for ERPOs, that need not have been the end of the matter. "It wasn't pursued by the local sheriff agency," Polis noted. "I'm sure what will be looked into is why wasn't it pursued."
There are legitimate questions about why the El Paso County Sheriff's Office did not apply for an ERPO in this case. The law's supporters note that Sheriff Bill Elder is a vocal critic of Colorado's red flag law who indicated that he planned to use it sparingly. But even if Elder's office were more inclined to seek ERPOs, it is by no means clear that doing so in this case would have prevented the Club Q shooting. An order against the future murderer would have expired months before the attack unless the sheriff's office or another petitioner successfully sought an extension.
Under Colorado's law, which was enacted in 2019 and took effect at the beginning of 2020, "a family or household member" can seek an ERPO; so can "a law enforcement officer or agency." The court "shall issue" a temporary order, which lasts up to 14 days and does not require an adversarial hearing or advance notice to the respondent, if it finds "by a preponderance of the evidence" that the respondent's access to firearms poses "a significant risk of causing personal injury" to himself or others "in the near future." A final ERPO, which is issued after the respondent has a chance to rebut the allegations against him, requires "clear and convincing evidence" that he "poses a significant risk."
A final order lasts for 364 days unless the respondent successfully seeks to shorten it by presenting clear and convincing evidence that he no longer poses a "significant risk." The order can be extended for up to a year based on a new showing of clear and convincing evidence that the respondent still poses such a risk.
The evidence that a judge considers in deciding whether to issue an ERPO can include "a recent act or credible threat of violence" and an arrest for any of various crimes involving such acts or threats. It looks like the alleged 2021 bomb threat, as described by ABC News, would have qualified under both of those headings.
On the afternoon of June 18, 2021, the sheriff's office said, Voepel reported that "her son was threatening to cause harm to her with a homemade bomb, multiple weapons, and ammunition." Deputies located her son at a house where she was renting a room and contacted him by telephone, but he "refused to comply with orders to surrender." ABC News says "a tactical support unit was called in and approximately 10 homes in the immediate surrounding area were evacuated, while an emergency notification was sent to cellphones of residents within a quarter-mile radius."
The Colorado Springs Gazette obtained a Facebook Live video that the man uploaded during the standoff. "This is your boy," he says. "I've got the fucking shitheads outside. Look at that. They've got a bead on me. You see that right there? Fucking shitheads got their fucking rifles out. If they breach, I'm going to fucking blow it to holy hell. So go ahead and come on in, boys. Let's fucking see it!"
Police eventually persuaded the suspect to surrender, and they found no explosives during the subsequent search. KRDO, a radio station in Colorado Springs, reported that he was charged with two counts of felony menacing and three counts of first-degree kidnapping. But he was not prosecuted, and the arrest records were sealed, as required by state law.
If Voepel declined to cooperate with her son's prosecution, that could explain why the charges against him were dropped. It also would be consistent with the fact that she did not seek an ERPO. But it does not necessarily explain why the sheriff's office did not file its own petition based on what happened that day.
"Law enforcement agencies in appropriate circumstances should…utilize the law," Colorado Springs Mayor John Suthers said last week. But Suthers added that he would "caution against an assumption that the circumstances of this case would lead to application of the red flag law," saying "we don't know that."
In 2019, the El Paso County Board of Commissioners unanimously condemned Colorado's proposed red flag law, saying it "infringes upon the inalienable rights of law-abiding citizens" by authorizing police to "forcibly enter premises and seize a citizen's property with no evidence of a crime." Elder likewise raised due process concerns about the law, saying his office would enforce it only if a family or household member obtained an ERPO or in "exigent circumstances" where "probable cause can be established" that "a crime is being or has been committed."
El Paso is one of 37 Colorado counties that have declared themselves "Second Amendment sanctuaries," meaning they will not enforce gun laws they deem unconstitutional. In those counties, the Associated Press found, just 45 ERPOs were issued in 2020 and 2021, about a fifth fewer per capita than were issued in the rest of the state.
Polis evidently is troubled by such sparing use of the red flag law, and so is President Joe Biden. "The idea that we're not enforcing red flag laws…is ridiculous," Biden told reporters last week. Yet the concerns raised by critics like Elder are valid, given the way these laws, which 19 states have enacted, tend to be rigged against respondents.
Colorado's law is actually better than average in that respect. The state limits temporary orders, which are issued without an adversarial process, to threats "in the near future," for example, and it gives respondents a right to court-appointed counsel when they finally have an opportunity to challenge the claim that they pose a danger. Colorado's evidentiary requirements for both temporary and final orders are stricter than some states have prescribed. Even so, the "significant risk" standard is open to wide interpretation, and the process encourages judges to err on the side of issuing orders, which creates a danger that people will lose their Second Amendment rights even when it is highly unlikely that they would use firearms to harm themselves or others.
That manifestly was not the case with the Colorado Springs shooter. Even without Voepel's cooperation, the sheriff's office might have had enough evidence to obtain an ERPO against him last year. But that does not necessarily mean it would have had enough evidence of a continuing threat to extend the order a year later. At that point, in the usual course of things, he would have been able to recover any guns that were seized. He also would have been allowed to purchase additional firearms.
"Gun control advocates say [the] June 2021 threat is an example of a red flag law ignored, with potentially deadly consequences," A.P. notes. But given that ERPOs expire after a specified term, the story adds, "it's not clear the law could have prevented" the Club Q shooting.
Legislators could try to avoid that problem by authorizing ERPOs that last indefinitely. But time limits are a minimum requirement for any red flag law to pass constitutional muster. Doing away with them would effectively expand the already overbroad criteria that permanently deprive people of their Second Amendment rights. Court orders that were originally justified as temporary responses to temporary dangers would be transformed into lifetime bans.
Like previous mass murders, the Colorado Springs attack illustrates the inherent limitations of red flag laws. To work as advertised, they require that family members or law enforcement agencies with reason to believe someone is dangerous file petitions. But they also require a careful balance between the risk of preventable violence and the risk that innocent people will lose the right to armed self-defense based on erroneous or malicious petitions. Because the former risk tends to weigh much more heavily on legislators and judges, legitimate due process concerns do not get the attention they deserve. Reflexively reacting to horrifying crimes by demanding more use of red flag laws is not likely to improve that situation.
The post Could Colorado's 'Red Flag' Law Have Prevented the Club Q Massacre? appeared first on Reason.com.
]]>