Weed Shops Deserve Due Process, Says Judge
Plus: Andrew Cuomo's potential prosecution, Texas death blamed on abortion ban, and more...
Let the weed bodegas be! A recent crackdown by New York City authorities on stores selling marijuana without a license led to the shutdown of more 1,100 businesses. Now, a state judge is telling authorities not so fast.
Operation Padlock to Protect—the New York City policy used to justify the shutdowns—is unconstitutional, per New York Supreme Court Justice Kevin Kerrigan. (In New York, the state's highest court is called the Court of Appeals; Supreme Courts are trial courts that hear criminal and civil cases.)
The policy, adopted last spring, allowed the city sheriff to inspect any business selling cannabis or cannabis products without a proper registration, license, or permit to do so, and to "execute and order the sealing of certain places of business where such conduct continues after an inspection has revealed violations, or where such conduct poses an imminent threat to public health, safety, and welfare."
Owners of shuttered businesses can request a hearing with the city's Office of Administrative Trials and Hearings (OATH), which will make a recommendation about whether the business should be allowed to reopen. "But the ultimate decision is up to the sheriff — and lawyers representing businesses that have been shut down say it's not uncommon for the sheriff to ignore OATH's recommendations," notes the Gothamist.
This is the situation that a store called Cloud Corner found itself in. The Queens-based store was accused of illegally selling marijuana and shut down in September. After a hearing, an OATH officer recommended that the store should be allowed to reopen. But city sheriff Anthony Miranda declined to follow this recommendation and ordered the store closed for one year.
Cloud Corner sued, alleging that due process had been violated.
Justice Kerrigan agreed that there were "clear" due process issues at play here. "If the final arbiter has the authority to confer no weight to the hearing, there is no real meaningful opportunity to be heard, which…raises a due process concern," he wrote in his decision.
The city says it will appeal, and has basically gone full-blown Reefer Madness in its defense of forcibly shutting down businesses over license violations. "Illegal smoke shops and their dangerous products endanger young New Yorkers and our quality of life, and we continue to padlock illicit storefronts and protect communities from the health and safety dangers posed by illegal operators," said Liz Garcia, a spokesperson for Mayor Eric Adams, on Tuesday.
Congressional Republicans are recommending criminal charges for former New York Gov. Andrew Cuomo (D). The GOP-led House Select Subcommittee on the Coronavirus Pandemic is expected this morning to send a letter to U.S. Attorney General Merrick Garland recommending criminal charges against Cuomo for allegedly lying to Congress about COVID-19 deaths.
"At issue is Cuomo's truthfulness regarding his role in the writing and review of a state health department report from June 2020 that underestimated the nursing home death count by nearly half," reports CNN.
During the early period of the pandemic, Cuomo's office ordered New York nursing homes to readmit patients who had been hospitalized for COVID-19 and said that people who died from COVID-19 in hospitals after being transferred from nursing homes could not be counted among nursing home coronavirus deaths.
New York Attorney General Letitia James would later conclude that nursing home COVID-19 deaths had been severely undercounted and underreported.
In June 2020, an internal report from New York health officials said 9,000 people had died of COVID-19 in the state's nursing homes—but this fact was omitted from the final report that became public. "The extraordinary intervention, which came just as Mr. Cuomo was starting to write a book on his pandemic achievements, was the earliest act yet known in what critics have called a monthslong effort by the governor and his aides to obscure the full scope of nursing home deaths," The New York Times reported in March 2021. Cuomo's office said the omission was because they "could not confirm it had been adequately verified."
The Cuomo administration's policies "effectively admitted thousands of COVID-19 positive patients into nursing homes, causing predictable but deadly consequences for New York's most vulnerable," alleged U.S. Rep. Brad Wenstrup (R–Ohio) earlier this year. Wenstrup heads the House Select Subcommittee on the Coronavirus Pandemic, which is now recommending criminal charges against Cuomo. In a letter obtained by CNN, the subcommittee accuses Cuomo of making "criminally false statements" related to "his involvement in and knowledge of the drafting" of a reporting on coronavirus deaths.
On Wednesday, "Cuomo's legal team filed a referral letter to the Justice Department requesting they investigate an alleged abuse of power by the select committee, with a particular focus on Wenstrup, whom they claim to be in cahoots with a Fox News personality and her husband, who is part of a separate Covid-related lawsuit against the former governor," reports CNN.
Miscarriage leads to death in Texas. A Texas woman who died of an infection following a miscarriage could have been saved if doctors weren't so worried about running afoul of the state's abortion ban, suggests ProPublica. Josseli Barnica, a married mother of one, was 17 weeks pregnant with her second child when she spontaneously went into labor, the news outlet reports. Doctors at HCA Houston Healthcare Northwest determined that a miscarriage was in progress. Typically, the treatment at that point would be to give the pregnant woman drugs to speed up the delivery or to perform a dilation and evacuation procedure, a number of medical experts told ProPublica. But hospital staff told Barnica that they couldn't do that while a fetal heartbeat was still being detected.
While Texas' abortion ban does contain an exception for situations where a pregnant woman's life is a risk, a miscarriage is not necessarily a life-threatening procedure—even though it can become one. This leaves doctors in an impossible situation, in which doing what's best for the patient could land them in huge legal jeopardy, and playing it legally safe could put the patient in more risk. In this case, "Barnica was technically still stable. But lying in the hospital with her cervix open wider than a baseball left her uterus exposed to bacteria and placed her at high risk of developing sepsis, experts told ProPublica."
Barnica was at the hospital for about 40 hours before doctors declared that there was no longer any fetal cardiac activity and gave her drugs to help speed up the miscarriage. She was sent home about eight hours after that, ProPublica reports. Three days later, Barnica died. An autopsy report lists the cause of death as "sepsis due to acute bacterial endometritis and cervicitis following spontaneous abortion…with retained products of conception."
No one can say for sure whether Barnica would have survived had doctors at the hospital done things differently. But stories like hers—and others like it—at least call into further question whether strict abortion bans like the one in Texas are putting pregnant women in jeopardy.
QUICK HITS
• The Washington Post talks to pro-choice women who aren't buying Democrats' claims about what a second Trump presidency would mean for legal abortion.
• A new analysis from the Brennan Center for Justice "makes it clear 'progressive' prosecution policies neither hamstring police nor embolden criminals," reports Techdirt's Tim Cushing.
• Japan's same-sex marriage ban violates the country's equal rights guarantee, the Tokyo High Court ruled yesterday.
