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Brickbat: That Was Then, This Is Now

During her successful 2018 run to become Chicago’s mayor, Lori Lightfoot campaigned on a promise to reduce the city’s dependence on fines and fees to balance its budget, noting they fall disproportionately on the poor and minorities. Now, Lightfoot is facing the possibility of a more than $1 billion deficit in 2021 and her budget proposal calls on police to ticket anyone driving as little as 6 mph over the speed limit clocked using speed cameras. Currently, only those driving 10 mph or more above the speed limit get ticketed. Her proposal would have drivers receive a warning for their first violation and a $35 ticket for each additional time they are caught driving 6 to 10 mph above the limit.

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California’s Proposition 22 Would Save Jobs and Help Consumers. Legislators Won’t Listen. –

A California appeals court ruled last week that Uber and Lyft must classify their drivers as employees instead of contractors, intensifying the pressure to pass a ballot measure that would allow them to keep the flexible business model that a majority of their workers say they prefer. That measure—Proposition 22—would exempt ride-hailing companies from A.B. 5, the legislation that strongarmed companies into transitioning gig-economy workers from freelance to employee status.

The latter comes with a slate of benefits, including health care, paid time off, compensation for expenses, and a minimum wage, among other perks. But A.B. 5 gave companies an incentive to lay off contractors, sparking a backlash among freelancers. Restrictions put in place for content creators, for instance, led to mass layoffs in journalism and marketing.

Those “were never good jobs,” insisted Assemblywoman Lorena Gonzalez (D–San Diego), the legislator behind A.B. 5. Workers pushed back on that. “The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Alisha Grauso, an entertainment journalist and co-leader of California Freelance Writers United, told me last December. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.”

Such workers were eventually granted an exemption from the law. A.B. 5 also had to exempt a slew of other professions, including hairstylists, real estate agents, insurance agents, lawyers, accountants, doctors, and dentists. (That list is not exhaustive.) If Proposition 22 passes, ride-share drivers will be in good company.

A.B. 5 was crafted as a response to Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a court decision that established a rigorous test for labeling a worker as a freelancer instead of an employee. That case specifically addressed truckers, who, ironically, have since been exempted from the legislation. With its laundry list of exceptions, A.B. 5 now almost exclusively targets Uber and Lyft—a cronyistic approach that creates more problems than it solves. (So far, the two companies have staved off the changes by appealing the rules in the courts.)

“Uber and Lyft have been fighting tooth and nail for years to cheat their drivers out of the basic workplace protections and benefits they have been legally entitled to,” said Gonzalez in August. What the assemblywoman omits is that the majority of ride-share drivers want to keep the gig economy model as is. Out of California drivers, about 60 percent approve of Proposition 22, according to a poll conducted on behalf of the publication Rideshare Guy; 23.6 percent are against, and 16.2 percent are undecided.

That shouldn’t be a surprise when considering the immediate implications of A.B. 5. First, there are the job losses caused by the increase in labor costs: A study conducted by Beacon Economics LLC found that, by its most conservative estimate, Lyft would have to lay off 219,547 drivers in the Golden State. Mandated employee status would also usher in the demise of the flexible work-when-you-want business model—something oft cited by drivers as a major pro to working for Uber and Lyft—with operators instead scheduled in shifts. Consumers should expect to see a 20 to 30 percent increase in prices, something that will alienate lower-income riders.

A.B. 5 hurts the intended beneficiaries, and the brunt of that pain is likely to fall on the most vulnerable populations. In New York City, 90 percent of app-based drivers are immigrants and less than 16 percent have a college degree; two-thirds of those operators use Uber and Lyft as their only source of income. California does not have comparable statistics available, but the demographics are more likely than not to be similar—and New York is mulling new gig economy regulations itself. Those drivers should hope A.B. 5 won’t be the model.

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The Senate Has Confirmed Amy Coney Barrett to the Supreme Court –

The Senate has voted 52–48 to confirm Amy Coney Barrett to the Supreme Court, filling the seat left by the late Ruth Bader Ginsburg and cementing a 6–3 conservative court majority.

Republicans were unified in support of Barrett, with the exception of Sen. Susan Collins (R–Maine), who cited the GOP’s refusal to hold hearings for Judge Merrick Garland—former President Barack Obama’s pick to replace Justice Antonin Scalia—in an election year. All Democrats were in opposition, making Barrett’s confirmation the most partisan since Reconstruction.

That partisanship was on full display two weeks ago during Barrett’s hearings before the Senate Judiciary Committee. Though the procedure was more civil than Justice Brett Kavanaugh’s in 2018, Democratic senators spent much of their time lambasting the process and criticizing what they perceive as Barrett’s opinions on various political issues. Republicans often countered with lectures to Democrats. Little time was devoted to discussing Barrett’s judicial philosophy of originalism.

Barrett’s opponents posit that she’ll dismantle precedents around the Affordable Care Act (ACA), abortion, and same-sex marriage, but there’s scant evidence for that. Sen. Sheldon Whitehouse (D–R.I.) took things a step further, arguing that Barrett will accomplish the above as part of a far-right dark money plot, though the evidence he presented cut directly against his conclusion.

“The predictions that confirming Barrett will doom the ACA…should be viewed as Democratic fear mongering rather than realistic expectations,” writes Reason‘s Jacob Sullum, calling such objections “implausible” and “confused.” In a similar vein, Barrett said in 2013 that Roe v. Wade, the landmark case that legalized abortion nationwide, will likely remain in place, though courts may issue rulings on abortion funding. During her confirmation hearings, she called Obergefell v. Hodges, the decision that legalized same-sex marriage, an “important precedent.”

Barrett is expected to be sworn in this evening by Associate Justice Clarence Thomas.

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The Seventh Rule of Court Packing Is To Rule Out Term Limits for Supreme Court Justices –

The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

The fourth rule of Court packing is accuse the Republicans of Court packing.

The fifth rule of Court packing depends how Republicans handle it.

The sixth rule of Court packing is appoint a commission to recommend court packing.

The seventh rule of Court packing is to rule out term limits for Supreme Court Justices.

Today Vice President was asked if he would be open to a recommendation from the Garland Commission for term limits. Biden emphatically rejected that position, but then insisted that he had not yet made a judgment.

“No. No. No. No. There is a question about whether or not–It’s a lifetime appointment. I’m not going to attempt to change that at all. There’s some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time on the Supreme Court. But I have made no judgment, my word. My word is I have made no judgment. There is just a group of serious constitutional scholars who have a number of ideas how we should proceed from this point on. That’s what we are going to be doing. We are going give them 180 days, G-d willing if I am elected, from the time I am sworn in, to be able to make such a recommendation.”

First, I think Biden was about to say there is a question whether term limits could be imposed by statute. But he stopped himself. I agree. Among the various proposals, adding term limits by statute is subject to the strongest constitutional challenge.

Second, Biden is sending the marching order pretty clearly. He doesn’t want term limits. The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon. He wants the ability to rotate Supreme Court Justice to the lower courts and promote certain Circuit Justices to the Supreme Court. And of course, Biden will pick progressive jurists for that role.

Third, Biden seems to suggest this group of scholars has already been selected. Who are they? Identify yourselves! How many of the people who criticized my Garland commission post are already on the short list of the Garland commission?

Fourth, the conclusion is foregone. The members of the commission will just be going through the motions. Once, I was a member of an organization that asked me to sit on a committee to make a recommendation. It turned out that my recommendation would serve no purpose. The leadership had already made its decision. My work would be meaningless. At that point, I refused to participate in the meaningless process. And my abstention deprived the committee of a quorum. As a result, the committee could not make any recommendation, and the entire process was held up. I was able to hold out, and persuade the full organization to modify the rules of proceeding. Now, it was clear that the leadership, and not the committee, was actually making the recommendation. In that fashion, accountability was clearly laid at the feet of leadership. Ultimately, I agreed with leadership’s decision, and was proud that the process was meaningful.

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What Will President Biden Do to Us? –

Did you notice at last week’s final presidential debate that the candidates actually talked about concrete coronavirus-related policies for more than a half-minute there? The discussion was not without its head-scratchers, but at least the most pressing issue facing 2020 America got chewed on a bit. Though it didn’t quite answer the question: What would a President Joe Biden do, exactly?

Such dominates the conversation on today’s Reason Roundtable podcast, starring Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward. The gang digs into the former vice president’s likeliest actions on COVID, education, health care, state bailouts, economic regulation, cancel culture, and much more. His opponent, ol’ whatshisface, also comes up a time or two.

Audio production by Ian Keyserand Regan Taylor.

Relevant links from the show:

On Obamacare, Biden Repeats Obama’s 2013 Lie of the Year,” by Peter Suderman

Trump and Biden Are Both Misleading Us About COVID-19,” by Jacob Sullum

Joe Biden Has No Realistic Plan To Reopen Schools,” by Robby Soave

Trump Is Wrong About Military Distribution of a COVID-19 Vaccine,” by Sam Rutzick

Mark Meadows: ‘We’re Not Going To Control the Pandemic,’” by Eric Boehm

PPParty Time!” by Christian Britschgi

Biden and Trump Offer Competing Tax Proposals, but Both Ignore Economic Reality,” by J.D. Tuccille

Joe Biden’s Proposal To Double the Minimum Wage to $15 an Hour Won’t Help Small Businesses,” by Christian Britschgi

Joe Biden’s Economic Policies Would Cost the Economy 4.9 Million Jobs by 2030, According to a New Study,” by Billy Binion

Voting Is Overrated,” by Katherine Mangu-Ward

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‘CASES, CASES, CASES … Cases are up because TESTING is way up,’ Tweets the President –

“CASES, CASES, CASES … Cases are up because TESTING is way up,” tweeted President Donald Trump on Saturday. He was frustrated that the news media were reporting the highest level of diagnosed cases of COVID-19 since the pandemic began back in February. It’s true, of course, that more testing will reveal more cases, many of them among low-risk people. But parsing the data from the COVID Tracking Project shows that the increase in the count of American COVID-19 cases is not just due to more testing; there is more community spread too.

Max Roser, the proprietor of the invaluable site Our World In Data, responded to the president’s tweet by pointing out that “when more testing means that you are finding more cases then you are *not yet testing enough*.” Roser also explained that “a crucial metric is the positive rate. It is low when a country tests in proportion with the size of its outbreak. The US is a country that never achieved that and doesn’t achieve it now. That’s why it is true there that more testing means that you find more cases.” When a place is doing enough tests, the positive rate falls and becomes very low.

Is the president right that “TESTING is way up” in the U.S.? According to the COVID Tracking Project, the seven day average for daily tests peaked in late July at around 850,000 and then fell to 725,000 by mid-September. The current seven-day average has now risen to 1.1 million tests. So COVID-19 testing is indeed up, but is it up enough?

The percent positive testing rate is a critical indication of how widespread an infection is and whether levels of testing are keeping up with levels of disease transmission, explain David Dowdy and Gypsyamber D’Souza, a pair of epidemiologists at Johns Hopkins University. A test positivity rate above 5 percent is generally considered to be too high.

At the beginning of the pandemic, when available testing was nearly non-existent, the positivity rate reached a seven-day average of 22 percent. That fell to 4.2 percent by late June before rising to 8.2 percent during the summer surge in COVID-19 infections. By late September, the positivity rate had fallen below the 5 percent threshold to 4.3 percent.

As the number of daily tests has slightly increased in the past month, so too has the positivity rate, with the seven-day average now standing at 6.2 percent. Unfortunately, this calculation indicates that tests are not just detecting more cases but that the COVID-19 transmission rate in many communities is accelerating.

Another sign that we’re seeing more than just an increase in testing: The COVID-19 hospitalization rate is rising. Writing in The Wall Street Journal, former Food and Drug Administrator Scott Gottlieb notes that hospitalizations are now at 42,000, up from 30,000 a month ago, even though COVID-19 hospital admission criteria have become more stringent.

In a tweet today, the president complained that the “Fake News” is reporting “COVID, COVID, COVID…in order to change our great early election numbers. Should be an election law violation!” Even if he were right that new reports about the spread were wrong, the president shouldn’t be calling for restrictions on the press. But alas, he’s not right about it being fake news either: The pandemic is again surging.

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Study Finds Sanctuary City Policies Reduce Deportations Without Increasing Crime –

Over the last decade or so, many state and local governments have adopted “sanctuary” policies that restrict their law enforcement agencies’ cooperation with federal efforts to deport undocumented immigrants. Critics, including the Trump administration, claim that sanctuary policies increase crime. Trump has adopted a range of policies designed to coerce sanctuary jurisdictions into doing the bidding ICE, which in turn has led to numerous court decisions striking down the administration’s policies.

A recent widely publicized study by Stanford University political science research fellow David Hausman finds that sanctuary city policies result in a reduction in deportations, but no accompanying increase in crime. Here is the abstract summarizing the findings:

The US government maintains that local sanctuary policies prevent deportations of violent criminals and increase crime. This report tests those claims by combining Immigration and Customs Enforcement (ICE) deportation data and Federal Bureau of Investigation (FBI) crime data with data on the implementation dates of sanctuary policies between 2010 and 2015. Sanctuary policies reduced deportations of people who were fingerprinted by states or counties by about one-third. Those policies also changed the composition of deportations, reducing deportations of people with no criminal convictions by half—without affecting deportations of people with violent convictions. Sanctuary policies also had no detectable effect on crime rates. These findings suggest that sanctuary policies, although effective at reducing deportations, do not threaten public safety.

The article is, unfortunately, gated, so it may not be easy for readers without university or research institute affiliations to get free access. But this Washington Post article has a good summary of the results,as does the Hill. Hausman’s findings are consistent with those of previous academic research on the subject, which consistently also concludes that sanctuary city policies do not result in increased crime rates, and may even reduce them. In Chapter 6 of my recent book, Free to Move, I use this and related evidence to make the point that we can better combat violent and property crime by redirecting resources currently used for deportation efforts to conventional policing. For example, I estimate that  zeroing out ICE immigration enforcement programs would free up enough funds to pay the salaries of over 60,000 new police officers. And unlike ICE’s current activities, extensive evidence indicates that having more conventional cops on the street really does reduce crime—though it is also important to do more to curb police abuses against civilians, including racial profiling.

I do not suggest that hiring more cops is the best possible use of resources currently devoted to deportation efforts. But, if the goal is reducing crime rates—particularly when it comes to violent and property crimes that actually harm people, it would be a major improvement over the status quo.

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Elections Can’t Cure a Sick Political Culture –

With November 2020 looming, Americans look forward to the end of a seemingly permanent election campaign and perhaps some reduction in the raging fever of national tensions that ail the country. Dream on. Even if we have a clear winner on election night, the selection of next year’s lucky White House resident seems bound to leave people more enraged than ever. Elections are no longer about turning out one officeholder and set of policies in favor of another with different schemes; they’re existential battles between political tribes who see their enemies as dangerous and evil.

Which is to say, awful officials are only symptoms. America’s divisive political culture is the disease and isolating the patients from one another may be the only treatment.

“Overwhelming majorities of both Biden and Trump supporters say that if the other candidate wins in November they would not only be very concerned about the country’s direction, but that this would lead to lasting harm to the nation,” Pew Research reported this month. “Fully 90% of Biden supporters say this about the prospect of Trump’s reelection, while 89% of Trump supporters say this about the prospect of Biden as president.”

Just over half (51 percent) of all voters told Pew that they “think about politics as a struggle between right and wrong.”

“Right and wrong” is pretty stark, but it doesn’t capture the full depths of antagonism between the country’s political tribes. Last year, Louisiana State University political scientist Nathan Kalmoe noted that 55 percent of Republicans and 44 percent of Democrats said the other party is “not just worse for politics—they are downright evil.” He added that 34 percent of Republicans and 27 percent of Democrats said the other party “lack the traits to be considered fully human—they behave like animals.”

So, we don’t have a modest disagreement over take-it-or-leave-it policies, but rather a Manichaean struggle (in the eyes of true-believing participants) for the fate of the nation. Which helps to explain why “among Americans who identify as Democrat or Republican, 1 in 3 now believe that violence could be justified to advance their parties’ political goals,” as Kalmoe wrote just weeks ago in an article co-authored with four other political scientists. “All together, about 1 in 5 Americans with a strong political affiliation says they are quite willing to endorse violence if the other party wins the presidency.”

Just as troubling, 56 percent of Americans tell Braver Angels/YouGov that they anticipate “an increase in violence as a result of the election” and 61 percent of Americans fear the country is on the verge of civil war, according to another recent poll.

But anticipation of violence isn’t predestination; it’s just as likely to be an extension of seeing opponents as “downright evil,” “like animals,” and likely to do “lasting harm to the nation” if put in charge. That is, shuffling warm bodies among elected offices won’t resolve the country’s tensions, because the source of the tensions lies in the people themselves, divided as they are into hostile tribes fighting to wield power over each other. No matter who wins office, the people on the other side will still be there and represent a continuing threat in the eyes of opponents.

Recognizing the problem, Braver Angels, a pro-civility group that sponsored the poll finding a majority anticipating increased political violence, solicits signatures for a letter asking people to eschew tribalism:

We start with this commitment: We will not demonize or question the decency of Americans who vote differently from us. When we oppose their political views we will say so with vigor, but we won’t castigate them as persons.

It’s a lovely sentiment that seems too little, too late, by many years.

Still, there’s a long distance between despising your neighbors and fighting them in the streets. The next few years could look less like Spain in the 1930s than like an exaggerated and more chaotic continuation of recent events (including, unfortunately, some degree of violence).

Among those events have been the tendency of localities at odds with federal and state authorities to go their own way, ignoring laws and dictates with which a majority of residents disagree. This isn’t a new phenomenon—Norman Vroman, the Libertarian District Attorney of Mendocino County, California, drew national attention two decades ago for deemphasizing laws against marijuana. Recent years have seen the rise of the sanctuary cities movement of localities refusing to help federal authorities enforce immigration laws. Towns and counties opposed to restrictions on self-defense rights have similarly refused to enforce gun laws that are unpopular with their residents.

“The Second Amendment sanctuaries movement borrows from the language and rhetoric of the immigrants’ rights movement. Insofar as the enforcement of state and federal law often depends on the cooperation of local officials, the movement also deploys some of the same strategies: passive non-cooperation, indirect resistance, and rhetorical disobedience,” Richard Schragger of the University of Virginia School of Law wrote earlier this year.

The COVID-19 pandemic response has also aggravated tensions between levels of government, with two Team Blue multi-state coalitions actively opposed to their Team Red counterparts in D.C.

“The pandemic has reinforced the themes of polarization and punitiveness governing contemporary intergovernmental conflict,” Greg Goelzhauser and David M Konisky wrote this summer in The Journal of Federalism. “The partisan divide continues to permeate most dimensions of American federalism. Positions on public policy and legal questions are ideologically divided.” They describe state-level defiance and the federal government’s retaliation in response as “punitive federalism.”

The legal basis for ignoring commands from on-high varies, but that’s a concern for law professors. For most people, ignoring the commands of governments in the hands of “downright evil” enemies isn’t a legal question, but rather a matter of survival.

Beyond a matter of survival, though, local disregard for despised laws and policies might be a pressure-release mechanism and a potential curative. As a de facto way of decentralizing authority, ignoring dictates from state and federal governments in the hands of the “enemy” offers a peaceful resolution of disagreements and tensions that aren’t going anywhere after the upcoming election. You don’t have to fight “downright evil” opponents if you can ignore them.

Formally decentralizing authority in this country would be a positive development in many ways, but a hard sell to political victors unwilling to let their opponents off the hook. Informal defiance of central authority is bound to antagonize officialdom and upset legal experts, but it might be the best medicine for our sick political culture. Unsanctioned it may be, but a future of individuals and localities paying no mind to the powers that be offers a nonviolent means of resolving disputes that would otherwise be settled in much less pleasant ways.

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Amy Coney Barrett on Lochner and the 14th Amendment –

According to the conventional wisdom, Supreme Court nominee Amy Coney Barrett successfully bobbed and weaved her way through her recent Senate confirmation hearings without really sharing any of her substantive legal views. But Barrett did disclose one big thing: She thinks the Supreme Court got it wrong when it protected the constitutional right to economic liberty in the famous case of Lochner v. New York (1905).

On October 14, Sen. Josh Hawley (R–Mo.) asked Barrett to “talk just a little bit about how a court could substitute its own views on economic policy for those of a law-enacting body, of a legislature or of Congress.”

“In the Lochner era,” Barrett replied, and “in Lochner itself,” the Supreme Court “was standing in the way of reforms for workers that legislatures were enacting.” Say a federal judge “had a preference for free trade, or if one had a preference for having no minimum wage,” she said. “To hold such a statute that did the opposite of your policy preference unconstitutional because it didn’t comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.”

Is that what happened in Lochner? Did the Supreme Court “thwart the will of the people without warrant in the Constitution”?

The Court did thwart those New York lawmakers who wanted to limit the number of hours that bakers were allowed to work each week. But since “clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week,” observed the majority opinion of Justice Rufus Peckham, the working hours regulation deserved to be struck down as an illegitimate exercise of the state’s regulatory powers.

Unlike the rest of the Bakeshop Act, Peckham explained, which properly and legitimately regulated “washrooms and closets,” the height of ceilings, floor conditions, and “drainage, plumbing, and painting,” the hours limit involved “neither the safety, the morals, nor the welfare, of the public” and was thus “not, within any fair meaning of the term, a health law.” What is more, Peckham held, the provision violated liberty of contract, a constitutional right secured against state infringement by the 14th Amendment.

Peckham was correct about that. The original meaning of the 14th Amendment includes the right to economic liberty. As Rep. John Bingham (R–Ohio), the principal author of Section One of the 14th Amendment, told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

Even those who opposed the 14th Amendment’s ratification said as much at the time—which is also good evidence of the amendment’s original public meaning. For example, Rep. Andrew Jackson Rogers (D–N.J.) complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities….The right to contract is a privilege….I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities.” The “right to contract” was of course at the center of Lochner.

Despite what Barrett told Hawley, Lochner does in fact have a warrant in the Constitution.

Related:Lochner Isn’t a Dirty Word.”

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If You Don’t Want to Be Attacked by Police Dogs, ‘Stay Home’ –

After body camera footage showed that a Salt Lake City police officer had sicced a dog on a cooperative suspect, an internal audit revealed what Mayor Erin Mendenhall described as “a pattern of abuse”: In two-thirds of the 27 cases where a police dog had bitten someone since 2018, the use of force was questionable enough to consider criminal charges against the officers. The scandal prompted state legislators to propose a bill that would codify the appropriate use of police dogs. But state Sen. Don Ipson (R–St. George) has a simpler solution: If people don’t want to be attacked by police dogs, he said last week, they should “stay home.”

Ipson made it clear that he was not keen on the proposed legislation. “I don’t have a lot of sympathy,” he told fellow members of the Utah Senate’s Judiciary, Law Enforcement, and Criminal Justice Committee. “We don’t want to harm the public. But if they don’t want to get bit, stay home.”

There are a few problems with Ipson’s stance. First of all, Jeffery Ryans, the 36-year-old man who was bitten in the incident that prompted Salt Lake City to review the use of police dogs, was smoking a cigarette in his own backyard when he was accosted by cops on April 24. They were there because someone had called 911 after hearing Ryans arguing with his wife, who had obtained a protective order against him. According to Ryans, he had moved back in with his wife weeks earlier at her invitation. She told him she had asked that the protective order be lifted, but he did not realize it was still in force because her request was pending.

Whatever the circumstances of the encounter, body camera footage obtained by The Salt Lake Tribune clearly showed that Ryans was cooperating with police when Officer Nickolas Pearce told his dog to attack. “Get on the ground!” Pearce shouted. “Get on the ground, or you’re going to get bit!” Ryans crouched, then kneeled on the ground with his hands in the air. Pearce nevertheless set the dog on Ryans, who said, “I’m on the ground! I’m on the ground! Why are you biting me? I’m on the ground! Stop! Ow! What the fuck?” But as far as Pearce was concerned, the dog was doing exactly what he was supposed to do. “Good boy,” Pearce said.

Last month Salt Lake County District Attorney Sim Gill charged Pearce with second-degree aggravated assault, a felony punishable by up to 15 years in prison. Ryans “wasn’t resisting arrest,” Gill said. “He certainly wasn’t posing an imminent threat of violence or harm to anyone, and he certainly wasn’t concealed. He was fenced in an area and was being compliant.”

Even if Ryans was not on his own property when he was attacked, of course, Pearce’s use of force would have been excessive. “It is absolutely appalling that Sen. Ipson would make such a terrible statement in support of police violence,” Lauren Simpson, policy director at the Alliance for a Better Utah, said in response to the legislator’s comments. “Suggesting that people should just ‘stay home’ if they don’t want to experience police brutality is truly one of the more obscene things to be uttered recently by a sitting lawmaker in Utah.”

Contacted by the Tribune, Ipson revised his position. “Ipson apologized for misspeaking by saying Utahns should stay home if they want to avoid being bitten by police dogs,” the paper reports, “but he stood behind his underlying argument—which is that committing crimes puts people at risk of encounters with law enforcement.” And then, apparently, all bets are off.

“I’m 73 years old,” Ipson said. “I’ve never been threatened by a K-9 dog. If you don’t want to have a confrontation with a police officer or a K-9 dog…you don’t break the law.”

Ryans, who plans to sue the Salt Lake City Police Department, has a somewhat different perspective. The injuries that Pearce’s dog inflicted on his lower left leg, which caused infections as well as nerve and tendon damage, required multiple surgeries and lost him his job as a train engineer. “I felt like a chew toy,” he told the Tribune. “I didn’t know why this was happening to me. That’s what was going through my mind: Why?”

Ryans, who is black, thinks his race helps explain the police response. “People need to know black lives matter,” he said. “Everybody matters, but you can’t just treat people differently because of their religion or their skin color. I developed myself to get to where I’m at right now. I should have the same respect as others. We don’t get it.”

The attack on Ryans is reminiscent of a case that the U.S. Court of Appeals for the 6th Circuit heard in 2018. Alexander Baxter, a burglary suspect arrested in 2014, alleged that Nashville cops sicced a police dog on him while he was sitting on the ground with his hands in the air. Even if that was true, the 6th Circuit ruled, the officers “did not violate clearly established law” and were therefore entitled to qualified immunity. In other words, the court said Baxter was not allowed to sue police under 42 USC 1983 for the same alleged behavior—siccing a dog on a nonresisting suspect—that Utah prosecutors thought was clearly felonious.

In June, the U.S. Supreme Court declined to review Baxter’s case. Justice Clarence Thomas dissented. “I have previously expressed my doubts about our qualified immunity jurisprudence,” he wrote. “Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”