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Federal Court Temporarily Stays OSHA Employer Vaccination Mandate

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Today, the US Court of Appeals for the Fifth Circuit issued a stay of the the Occupational Health and Safety Administration (OSHA) newly announced Emergency Temporary Standard (ETS) mandate COVID-19 vaccination or testing combined with masking in private workplaces controlled by employers with 100 or more employees. Here is the short ruling in its entirety:

Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard(the “Mandate”) pending expedited judicial review.

Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.

The Government shall respond to the petitioners’ motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.

So ordered.

The order was issued per curiam, on behalf of all three judges on the panel (all of whom are conservative Republican nominees, for those keeping track). The stay of the mandate is only temporary. And – as the court suggests – may be lifted after “expedited judicial review,” which could happen very soon, given the accelerated briefing schedule laid out in order.

This case was filed by a group of employers and several GOP-controlled state governments. They likely chose the Fifth Circuit because they hoped its relatively conservative orientation would give them a greater chance of winning. An unusual statutory provision allows this case to be filed directly in a federal appellate court, as opposed to first having to be heard by a trial court (like nearly all other federal civil suits).

I said previously that, while I think the vaccination mandate has significant legal vulnerabilities and might set a dangerous precedent if upheld, I also don’t really know how courts will react to the legal arguments against it. We still don’t know the answer to that question with anything like certainty. But the Fifth Circuit’s statement that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate” is at least a sign that the judges think there is a serious case to be made against the mandate. They clear do not believe the case is a slam dunk for the federal government.

Even if the Fifth Circuit panel ultimately rules against the Biden administration, that won’t necessarily be the end of the legal battle over this issue. Much depends on how broad the ruling is, and on what grounds. It’s possible OSHA could respond to a narrow ruling against it by limiting the scope of the mandate or adjusting it in some other way. It’s also possible that a lower-court ruling against OSHA might be reversed or limited by the Supreme Court.

This is just the beginning of the legal battle over the OSHA ETS vaccination mandate. The agency might yet overcome this initial setback. Still, if I were an administration lawyer, I wouldn’t be very happy right now. If a panel of federal circuit court judges says the policy you are defending may have “grave statutory and constitutional issues,” that’s rarely a good sign for your case.

In previous posts on the administration’s vaccination mandate policy, I have noted that some of their other vaccine mandates (e.g. – those covering federal employees) are on relatively firm legal ground, and that I am sympathetic to the moral and policy case for vaccine mandates in some situations (see here and here). But I also believe the OSHA employer mandate is a case of executive overreach, and might set a dangerous precedent, if upheld. We may soon learn whether and to what extent the Fifth Circuit agrees with that assessment.

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“Turkeys Instead of Tickets” May Violate Fourth Amendment Rights

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Thanksgiving is associated with tradition. And it appears there’s a relatively new one popular with police departments in recent years: pulling over unsuspecting drivers to give out turkeys instead of tickets.

This holiday season was no exception, with media reports detailing such outreach efforts put on by the Mesa Police Department in Arizona, the McAllen Police Department in Texas, and the Fulton Police Departmentin Illinois.

The catch: It’s potentially against the law.

“They’re legal so long as there is reasonable articulate suspicion that a crime was committed,” says Andrew Fleischman, a defense attorney with Ross and Pines. “Absent that, it violates the Fourth Amendment.”

In other words, the cops haven’t violated anyone’s constitutional rights if every driver pulled over for a turkey allegedly committed a traffic infraction. But that’s not what’s going on here.

Some departments aren’t exactly hiding it. The cops in Fulton, Illinois, for example, admittedly eschew the Constitution and conduct such traffic stops on those who do follow the rules of the road. “Officers weren’t plucking out scofflaws,” reads a piece on the program in SaukValley.com. “Rather, they were issuing turkeys instead of tickets, all part of Operation Turkey Stop to reward mindful drivers.”

And while other departments aren’t necessarily so brazen with the messaging, it stands to reason that officers likely aren’t exchanging turkeys for tickets when it comes to drivers who are actively endangering others and abusing the rules of the road.

“I was like ‘Oh my God, no, what did I do?'” said Perla Romano, who was stopped in McAllen, Texas. “‘I was scared because what did I do? I just panicked.'”

In Mesa, Arizona, cops zero in on those who commit minor civil infractions. Officers focus on “stop sign violations, red light violations, or making wide turns,” says Mesa Police Sgt. Chuck Trapani. “We pull them over, and if they didn’t have any criminal violations like warrants or anything like that, then we’d give them a warning violation, plus a turkey.”*

A spokesperson for the McAllen Police Department was not able to comment and the Fulton Police Department did not respond to Reason‘s request as of this writing.

Though the initiative may sound benign, the Fourth Amendment exists for a reason: You have a right to privacy, and a right to be free from unreasonable searches and seizures. One wonders what might happen if an officer pulled someone over for a turkey and happened to catch a whiff of marijuana. Trade in that free Thanksgiving dinner for a potential jail cell.

Traffic stops rarely turn violent or deadly. Yet such instances are not unheard of. According to an investigation by The New York Times, police have killed more than 400 unarmed passengerswho were not suspected of any violent crimesduring traffic stops over the last five years, which amounts to more than one death a week. “It’s [a] frivolous use of their monopoly on force,” says Fleischman.

The spirit behind the program, according to the Mesa Police Department, is to engender affection between officers and the public during a time when cops have faced a sort of unprecedented pushback. Research indicates that such trust is indeed vital to building safer communities. But there are better ways for police to do that than by flouting the rule of law and violating people’s constitutional rights.

*UPDATE:This piece has been updated with a comment from the Mesa Police Department.

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No “Defense of Others” Defense in Justina Pelletier Hospital Hacking Case

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From U.S. v. Gottesfeld, decided earlier this month by the First Circuit (Judge Kayatta, joined by Chief Judge Howard and Judge Lynch):

In March 2014, Martin Gottesfeld and others committed a “Distributed Denial of Service” cyberattack against Boston Children’s Hospital and Wayside Youth and Family Support Network, causing both to lose their internet capabilities for three to four weeks. Gottesfeld targeted Boston Children’s and Wayside because of their role in caring for Justina Pelletier, a child whose medical condition and treatment were at the center of a custody dispute that received national attention.

Gottesfeld publicly admitted responsibility for the attacks. He was subsequently charged with intentionally causing damage to a protected computer, 18 U.S.C. 1030(a)(5)(A), and conspiring to do the same, id. 371. After an eight-day trial, Gottesfeld was convicted on both counts and sentenced to 121 months’ imprisonment, to be followed by three years of supervised release….

Gottesfeld challenges the district court’s order precluding him from raising at trial the affirmative defense known as “defense of another.” A district court “may preclude the presentation of [a] defense entirely” if the defendant does not produce sufficient evidence “to create a triable issue.” …

“Use of force is justified when a person reasonably believes that it is necessary for the defense of … another against the immediate use of unlawful force,” so long as the person “use[s] no more force than appears reasonably necessary in the circumstances.”

Gottesfeld sought to argue at trial that his cyberattack on Boston Children’s and Wayside was justified because it was necessary to protect Pelletier from remaining under the care of those institutions. In support of this theory, he primarily pointed to news and television reports stating that Pelletier was being “abused” and “tortured” under the care of Boston Children’s and Wayside; that Pelletier’s custody proceeding might be “compromised”; and that Pelletier’s parents had contacted the Federal Bureau of Investigation and other law enforcement agencies regarding Pelletier’s plight to no avail.

This evidence would perhaps support a finding that Gottesfeld subjectively believed Pelletier was at some risk of harm. But he marshals no case to support a finding that he reasonably believed that she faced the threat of immediate unlawful force. To the contrary, he knew that her custody was authorized by a court order. Furthermore, even if he thought that some individual or group of individuals were using or threatening to use unlawful force, that would have provided no justification for Gottesfeld to take hostage thousands of other persons’ internet connections.

{To the extent Gottesfeld contends that he reasonably believed that Pelletier’s treatment during her custody was unlawful, that argument is waived multiple times over: Gottesfeld did not clearly assert it before the district court and only now tries to develop it in his reply brief. Even were we to consider this argument, public commentary and opinion comparing Pelletier’s treatment to torturewhich is all he cites to support this claimdoes not alone support a finding that he reasonably believed that she was in fact being subjected to torture. To rule otherwise would be to empower every citizen with the ability to simultaneously incite and immunize criminal conduct by another even as a judicial tribunal is available to hear the claims of harm.}

Nor could a jury have found Gottesfeld’s chosen methods reasonably necessary. The issues of Pelletier’s custody and treatment were before a court, and all allegations known to Gottesfeld were known to law enforcement authorities. To the extent that Gottesfeld viewed these alternative courses of action as unlikely to succeed, we have previously explained that a defendant’s likely inability “to effect the changes he desires through legal alternatives does not mean, ipso facto, that those alternatives are nonexistent.” …

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University Administrators on the Rittenhouse Verdict

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Conor Friedersdorf (The Atlantic) has a very good article on this; an excerpt:

Rather than encourage independent scrutiny, administrators on many campuses have issued statements that presuppose answers to hotly contested questions, and assert opinions about the not-guilty verdict in the case and its ostensible significance as though they were matters of community consensus.

The whole episode is an illustration of a bigger problem in academia: Administrators make ideologically selective efforts to soothe the feelings of upset faculty members and students. These actions impose orthodoxies of thought, undermining both intellectual diversity and inclusion. “Certainly,” declareda statement by Dwight A. McBride, president of the New School, “the verdict raises questions about … vigilantism in the service of racism and white supremacy.” In reality, many observers are far fromcertainthat, when 12 jurors concluded that a white man shot three other white men in self-defense, they were saying anything about white supremacy.

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