“”Middle-management circuit judges must salute smartly and follow precedent,” Judge Don Willett regretfully explained in his concurring opinion. “And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in U.S. Supreme Court case law. The unfortunate reality, Willett observed, is that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
Vindicating your rights in court is a cornerstone of the rule of law. As the famous British jurist William Blackstone observed, “in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.”
Blackstone’s dire scenario resembles what is happening in the United States today in cases like Byrd v. Lamb. File suit for damages against a lawless federal officer, and the federal courts likely will toss the suit in the name of following precedent. As Willett noted in his judicial protest, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.””
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“If a Bivens claim arises in a “new context,” meaning “the case is different in a meaningful way from previous Bivens cases decided by this Court,” Justice Anthony Kennedy wrote, the presiding judge must scour the record for any “special factors counselling hesitation.” For example, Kennedy said, “the risk of personal damages liability is more likely to cause an officer to second-guess difficult but necessary decisions concerning national security policy.” If any such “special factor” is found (or simply invented by the judge), the lawsuit against the federal officer must be dismissed.”
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“The lower courts got the message. In Oliva v. Nivar (2020), the 5th Circuit dismissed a Bivens claim by 70-year-old José Oliva, a Vietnam veteran who was beaten and permanently injured by federal police at a Department of Veterans Affairs hospital in El Paso, Texas. According to Oliva, the officers took a disliking to him because he did not immediately show his ID, which was momentarily out of his reach in a metal detector bin. He also spoke up against their verbal bullying. “I got a problem with this man,” one of the officers reportedly said about Oliva’s lack of deference. “He’s got an attitude.” The same officer placed Oliva in a chokehold and slammed him to the ground, severely injuring his shoulder.
The 5th Circuit characterized Oliva’s civil rights lawsuit as a “new context,” which is basically the kiss of death for Bivens claims. Yes, the court admitted, both Oliva and Bivens centered on allegations of Fourth Amendment violations by federal officers. But “this case differs from Bivens in several meaningful ways.” For one, “the case arose in a government hospital, not a private home.” For another, “the VA officers were manning a metal detector, not making a warrantless search for narcotics.” From there it was all too easy for the 5th Circuit to find “special factors counselling hesitation,” such as the fact that Congress specifically “did not make individual officers liable for excessive-force claims.”
In sum, thanks to SCOTUS-sanctioned legal hairsplitting, a victim of abusive federal policing did not even get a chance to make his case for damages.”
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“Bivens became “a ‘disfavored’ judicial activity” because a majority of the Supreme Court has come to see it as an example of judicial activism, a modern ruling that empowered federal judges to do something they should not do. The late Justice Antonin Scalia called Bivens “a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Justice Clarence Thomas has argued that “the analysis underlying Bivens cannot be defended.”
But was Bivens really such a radical departure? Not when considered in the full light of American legal history. Indeed, the idea that federal judges have the authority to impose damages against lawless federal officers is as old as the republic—older, in fact, since it comes from venerable British common law judgments that directly influenced the founding generation.”
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“America’s founding generation was deeply committed to seeing the judiciary hold wayward federal officers civilly liable for their misdeeds. That commitment is readily apparent when you examine the debates over the ratification of the Constitution, in which both sides subscribed to this particular view of the judicial role.
In 1788, for instance, the Anti-Federalist writer known as Maryland Farmer argued that “whenever an officer had deviated from the rigid letter of the law,” that officer should be forced to pay “ruinous damages.” But under the proposed Constitution, Maryland Farmer feared, federal judges might refuse to award damages to “spare the public purse, if not favour a brother officer.”
George Mason, another Anti-Federalist, raised the same concern at the Virginia ratifying convention. Speaking on June 19, 1788, Mason worried that the new federal judiciary could not be trusted “to bring officers to justice.” Suppose “any of the federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton brutality to a man’s wife or daughter,” Mason demanded, “where is this man to get relief?”
Federalist John Marshall, the future chief justice of the United States, responded to Mason the next day. Mason “says that the officers of the government will be screened from merited punishment by the federal judiciary,” Marshall said. “The federal sheriff, [Mason] says, will go into a poor man’s house and beat him, or abuse his family, and the federal court will protect him.”
Nonsense, Marshall declared. “Will such great insults on the people of this country be allowable?” he asked. “Were a law made to authorize them, it would be void. The injured man would trust to a [judicial] tribunal in his neighborhood. To such a tribunal he would apply for redress, and get it.”
Marshall proved as good as his word while serving as chief justice. In Little v. Barreme (1804), he led the Supreme Court in finding a U.S. naval officer liable for trespass after he seized a ship based on an illegitimate presidential order. “The law must take its course,” Marshall wrote, “and he must pay such damages as are legally awarded against him.” Likewise, in Wise v. Withers (1806), Marshall found a District of Columbia justice of the peace liable for trespass after the officer entered a man’s home without legal authority.
Such rulings against rogue federal officers continued to appear in subsequent decades. “At the Founding, and for much of American history, there was no question as to whether federal courts had the power to provide judge-made damages remedies against individual federal officers,” observed University of Texas law professor Stephen Vladeck in the Cato Supreme Court Review: 2019–2020. “Not only did federal courts routinely provide such relief, but the Supreme Court repeatedly blessed the practice.” The Bivens case—in which federal drug cops were held civilly liable for unconstitutional search and seizure—is consistent with this noble legal tradition.”
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“Whatever the solution, it is long past time for the many victims of rights-violating federal officers to start getting some redress in court.”
“The Mexican Supreme Court first ruled that marijuana prohibition was unconstitutional in 2015. That decision became binding nationwide three years later, when the court gave the Mexican Congress 90 days to pass a legalization bill. Legislators missed that deadline and several others, and last week the court lost patience, ordering the federal government to issue permits that will allow cannabis consumers to possess and grow marijuana at home.
Similar permits have been available since 2015, but until now they were limited to marijuana users who had filed lawsuits and obtained injunctions. Commercial cultivation and distribution remain illegal.”
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“Mexico legalized limited medical use of marijuana in 2017. Last year President Andrés Manuel López Obrador confidently predicted that the legislature would approve a framework for licensing and regulating recreational marijuana suppliers in early 2021. But legislators still had not agreed on the details when the most recent court-imposed deadline came and went on April 30, and this time they did not request an extension.”
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“Mexico might be the third country to legalize marijuana—or possibly the fourth, if Israeli legislators follow through on a legalization plan that was endorsed last fall by both of the major parties that controlled the government at the time. The new governing coalition, a hodgepodge of right-wing and left-wing parties, is also officially in favor of legalization.
In the U.S., 18 states, representing 44 percent of the national population, now allow recreational use of marijuana, but the federal ban remains in place. Since President Joe Biden wants to keep it that way and congressional Democrats who favor legalization are not making a serious effort to attract Republican support, the conflict between federal and state marijuana laws is unlikely to be resolved anytime soon.”
“States and localities continue to struggle with getting billions in federal rent relief funds out the door, frustrating both tenants and property owners while fueling demands for continued eviction moratoriums.
On Friday, the U.S. Treasury Department released new data showing that as of May 31, recipient jurisdictions have spent only about $1.3 billion, or 6 percent, of the $25 billion in Emergency Rental Assistance (ERA) funds approved by Congress in December 2020 to help renters cover rent, rent debt, and utilities.
That federal money was given in the form of grants to states and territories and to local governments with populations over 200,000.
That number obscures a lot of variation between states. Virginia has spent about 30 percent of its ERA award, compared to California’s 2 percent. The pace of spending is also increasing. States and localities spent $774 million in May, compared to the $443 million spent in April, and the $272 million spent from January to March. About 345,000 families have received ERA-funded assistance.
That’s far short of the 1.3 million households who self-report that they’re “very likely” to be evicted in the next two months in Census surveys, reports Politico.”
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“The dispersal of funds has faced a number of problems. For starters, most state and local governments have had to set up their own rent relief programs from scratch.”
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“Some 60 percent of respondents in a recent survey of ERA administrators said that a lack of staff was preventing them from dispersing rental aid. Another 49 percent said that their technical ability to scale up programs was responsible for the trickle of relief provided thus far.
Nevertheless, housing advocates say that even with these front-end logistical difficulties, ERA grantees should still be managing to spend emergency rental assistance like there’s actually an emergency on.”
“rockets struck Ayn al-Asad air base, a military facility in Iraq that hosts American troops. U.S. Army Colonel Wayne Marotto, a spokesman for the U.S.-led coalition in Iraq, tweeted that the attack did not result in casualties. No group immediately claimed responsibility for the action.
Even without human loss, Monday’s hostilities highlight the risks associated with a continued U.S. troop presence and ongoing military engagement in the Middle East. The attack came just one week after President Joe Biden’s June 27 airstrikes on facilities used by Iran-backed militias in Iraq and Syria, which prompted rocket attacks against U.S. troops in Syria the very next day. There have been many tit-for-tat exchanges between the U.S. and Iran-linked parties since former President Donald Trump ordered the assassination of Iranian General Qasem Soleimani in January 2020. Though it’s unclear who ordered the Monday attack, it is clear that U.S. strikes and troops have failed to deter further antagonism from hostile parties in the region.
While Biden has made the Afghanistan troop withdrawal a centerpiece of his presidential agenda, his plans for the U.S. presence in Iraq and elsewhere in the Middle East are far vaguer. Following the Soleimani assassination on Iraqi soil, the Iraqi Parliament passed a resolution to expel U.S. troops from the country. No timetable for that withdrawal has emerged during bilateral negotiations, however, leaving the fate of the roughly 3,500 remaining U.S. troops in Iraq unsettled. Roughly 900 are still in Syria and their future is similarly murky.”
“Richardson, who tested positive for an inactive THC metabolite during U.S. Olympic Team Trials on June 19, said she used marijuana in Oregon, where voters approved legalization in 2014, after learning about her biological mother’s death. Had she reacted by having a drink or two, that choice would have had no impact on her athletic career.
But under the 2021 World Anti-Doping Code, which the U.S. Anti-Doping Agency (USADA) enforces, THC is considered a “substance of abuse,” so designated because it is “frequently abused in society outside of the context of sport.” Although the same obviously could be said of alcohol, that drug is not considered a “substance of abuse.”
Counterintuitively, Richardson’s infraction had nothing to do with “doping” as it is usually understood, since the USADA concedes that her marijuana use was “unrelated to sport performance.” Nor does her positive test result indicate that she was under the influence of marijuana during competition, since the THC metabolite cited by the USADA can be detected in a cannabis consumer’s urine for days or weeks after the last dose.
Richardson’s cannabis consumption nevertheless had severe consequences. It nullified her first-place finish in the 100-meter trials, making her ineligible for that event at this summer’s Olympics, where she had a good shot at winning a gold medal.”
“scandal-plagued politicians often don’t resign because of shame or docility, but because they’ve concluded that leaving office voluntarily is the least bad, most face-saving option for them personally.”
“Five years after Los Angeles voters approved a $1.2 billion bond measure and a countywide sales tax hike to raise another estimated $355 million annually to solve its homelessness problem, there are more people living and dying on the streets than ever before.
Many of these men and women are both frequent targets and perpetrators of violence.
Mayor Eric Garcetti (D), who did not respond to our interview request, has partially blamed this failure on the pandemic, which slowed new housing construction and limited shelter capacity. It’s true that COVID caused a surge in homelessness, but the city’s plan was already failing.”
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“The centerpiece of L.A.’s plan was to spend the $1.2 billion raised through Proposition HHH to build 10,000 supportive housing units over a decade. Even if the government were able to pull that off, it would merely put a dent in the problem in a city where more than 30,000 people are living on the streets and sidewalks according to the 2020 homelessness count.
Five years into the 10-year plan, just 14 projects are in service. Of the promised 10,000 supportive housing units, the city has completed fewer than 700.
It would take more than 30 years to house all of the people currently homeless in L.A. county at that pace, according to a federal court order.”
“The federal government created the stockpile, originally the National Pharmaceutical Stockpile, in 1999 to counter potential biological, disease and chemical threats to civilian populations. It was eventually renamed the Strategic National Stockpile in 2003, and the Department of Defense was given a role in its management alongside HHS. The stockpile was designed as a stopgap that would allow the federal government to surge supplies to specific areas experiencing disasters or threats, supplementing local procurement efforts. It was not meant to be the sole source for private and public institutions to obtain medical supplies in emergency settings.
Hospitals, public health departments and other health care facilities are supposed to maintain their own stocks of masks, gowns, drugs and ventilators. But during the first months of the Covid-19 pandemic in 2020, they ran out of those basic supplies. The overwhelming number of Covid-19 patients forced both private and public institutions to search for personal protective equipment and therapeutics on the open market.”
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“A year and a half into the pandemic, the U.S. still does not have a good way to quickly scale production of drugs and medical supplies needed to help supplement the strategic national stockpile, in part because manufacturers operate on just-in-time principals. Those standards are supposed to minimize inventory and maximize efficiency, but struggle to account for swings in demand.
“Everybody — shippers, hospitals, pharmacy chains — no one wants to hold inventory. Who is going to pay for those expensive medicines sitting there month after month?” O’Toole said. “This is why hospital stockpiles have dwindled.”
The federal government is beginning to work with the private sector to ensure manufacturers have the ability to scale production quickly during large-scale disease outbreaks.
The Biomedical Advanced Research and Development Authority (BARDA) is working with its parent, HHS, to find companies willing to alter their standard manufacturing practices to scale up production of therapeutics and other medical supplies to better prepare for the next pandemic. But expanding manufacturing capacity in the U.S. is not easy, one former Trump administration official who worked with BARDA told POLITICO. It will take years to build facilities, manufacturing lines and hire staff to oversee production, the former official said.”
“Biden’s statements on the legislation were crucial to advancing it. When the president met with lawmakers in June, he pledged that he wouldn’t push to include any physical infrastructure funding in Democrats’ reconciliation bill that wasn’t included in the bipartisan one.
As Politico’s Burgess Everett and Marianne LeVine reported, that position helped assuage some of the Republican senators’ concerns that Democrats would agree to whatever cuts were needed to gain GOP support before later passing everything that was cut using the reconciliation process, which requires only a Senate majority. Taking Biden at his word that what was cut from the bill was gone forever allowed many Republicans to give the bipartisan bill their support, according to Sen. Mitt Romney (R-UT).”
“It would be a mistake to get caught up in the collapse of provincial capitals because what has happened this week is just the continuation of what we’ve seen over the last three months.
Starting about three months ago, in late May and then June, picking up speed in July, the Taliban launched an offensive campaign that has swept across the country in a way that has been unprecedented since the US intervened in late 2001.”
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“it’s not accurate to say the Taliban now controls all of the districts they’ve captured, because in many places they haven’t set up a shadow government. They haven’t left a garrison of their fighters to control the area. In some places, they cause the Afghan troops or police to run away, to surrender, to retreat, to simply go home.
In the end, what we can say is not how much the Taliban controls, but how much the Afghan government has lost.”
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“the government has either been kicked out of or abandoned more than 200 of the 400 districts in the country. That’s happened in just the last three months.”
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“For the longest time, the Afghan government has pointed to this district center map as a means of demonstrating their authority, when in reality, their only presence or assertion of authority might be a district center where they have a couple buildings that are protected by a small military or police force, or sometimes just a militia that’s outfitted and paid by the government. And that’s it. That is the only government that exists in that entire district, for miles around in any direction.”
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“So when we ask, “How did we get here?” — where all of a sudden in one week, nine out of 34 provincial capitals fall to the Taliban, or seem like they’re on the verge of falling — the answer is, well, half of the country slipped out of the government’s control in the last three months, and it no longer had a buffer protecting those provincial capitals, which were these village outposts and district centers standing in the way.”
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“The New York Times ran a piece and got someone to go on the record with something I’ve been told over the last couple of weeks. One Afghan government official told them some of these districts fell when 10 Taliban fighters showed up. A lot of this was just the collapse of government authority, and if it could collapse in the face of 10 Taliban fighters, we have to be honest: It was barely there to begin with.”
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“It’s still too fluid to say they’re consolidating anything. What we can say is that they’re amassing huge numbers of their fighters to try and encircle or surround some of these cities. They’re doing it in multiple regions of the country: in the north, in the southwest. In some places, the government is pushing them back more effectively than others.”
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“What they seem to be doing seems to be something they planned on for quite some time, which is to cut off the government’s ability to resupply other areas of the country, to cut off the government’s ability to move from point A to point B on the country’s roads, and to surround and choke off the country’s cities — not to fight their way through each and every city of the country, but to pressure the government to collapse.”
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“Some people will say it’s because of the US withdrawal. And if that is true, it’s based on the psychological impact of that withdrawal, not the military effect that it had. The US had several thousand troops to help cover an area of the size of Texas. The US troops were not what was holding the Taliban back in 200 districts around the country. The US troops weren’t even out there at any of those villages.
Now, since the US-Taliban agreement was signed early last year, the US really scaled back its airstrikes against the Taliban, though they’ve picked them back up as the Taliban has gone on their offensive in the last three months. But for most of 2020, and the early months of this year, the US really wasn’t bombing the Taliban. That gave them a major reprieve from what had been a really intensive bombing campaign in 2018 and in 2019.”
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“It’s too early to see the outcome. What is clear is that if the Afghan government is able to mount a strong defense of cities, if it is able to take back some of these border crossing points and maybe other strategic stretches of the country’s major roads and highways, if the Afghan government can put a stop to the Taliban’s advance and can stand firm — then it might be able to fight its way back to a stalemate, a military situation where there’s no clear winner, at least in the foreseeable future.”
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“since the Obama administration, there was an acknowledgment among senior policymakers that the war was already unwinnable.”
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“What we’ve seen in recent years was a situation that was clearly slipping out of the Afghan government’s control. And for much of that time, the US solution was to ramp up airstrikes to help keep the scales leveled out. But with the US’s thumb on the scale, that meant the years went by and nobody really wanted to acknowledge how much they had tilted out of the government’s favor.”
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“Even in Biden’s remarks in mid-April, there was the suggestion that this withdrawal decision was made based on how hopeless the situation seemed. It was not the withdrawal that created an unwinnable situation. The withdrawal decision was made because in Biden’s assessment, the situation already was unwinnable.”