28 October 20
Anger Can Be Good, and Necessary
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Bernie Sanders | Winning on 11/3 Is Just the Beginning
Bernie Sanders, Reader Supported News
Sanders writes: "We find ourselves in a moment in history in which we face unprecedented crises: We are facing the worst pandemic in 100 years which has already claimed the lives of more than 220,000 Americans."
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E Jean Carroll. (photo: Craig Ruttle/AP)
US Cannot Shield Trump From Rape Accuser's Defamation Lawsuit, Judge Rules
Jonathan Stempel, Reuters
Stempel writes: "A federal judge on Tuesday rejected a U.S. government request to drop Donald Trump as a defendant in a defamation lawsuit by a writer who said the president falsely denied raping her in a Manhattan department store a quarter century ago."
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Philadelphia on October 27. (photo: AP)
Philadelphia Police Shot a Black Man 10 Times While His Mother Begged Them to De-Escalate, Sparking Major Protests
Paul Blest, VICE
Blest writes: "Police shot a 27-year-old Black man named Walter Wallace Jr. nearly a dozen times on Monday as he was experiencing a mental health crisis, killing him and sparking protests in West Philadelphia overnight."
Shortly after 4 p.m. Monday, police said, they responded to reports from the city’s Cobbs Creek neighborhood that Wallace was armed with a knife. Video posted to Twitter shows the final moments of the incident: Philadelphia police officers are backing up with their guns drawn as Wallace walks toward them, while his mother, who has not been named, tries to de-escalate the situation.
The video shows that Wallace is several feet away when the cops begin firing around a dozen shots, at which point Wallace’s body falls to the ground. Wallace’s mother runs out into the street and cries out in agony.
"Y'all didn't have to give him that many fucking shots,” the person recording the video says. One of the officers drove Wallace to a hospital, where he died, according to the Philadelphia Inquirer.
WARNING: The following video is graphic.
Wallace was on medication for mental health issues, his father told the Philadelphia Inquirer. Walter Wallace Sr. said his son was shot 10 times. “Why didn’t they use a Taser?” his father said. “His mother was trying to defuse the situation.”
Both officers were wearing body cameras, police said. VICE News has requested the footage.
Philadelphia police commissioner Danielle Outlaw, the first Black woman to lead the city’s police department, acknowledged in a statement that the footage “raises many questions.”
“Residents have my assurance that those questions will be fully addressed by the investigation,” Outlaw said, adding that she “heard and felt the anger of the community. Everyone involved will forever be impacted.”
A spokesperson for the Philadelphia Police Department confirmed Tuesday that the officers involved in the shooting were placed on desk duty pending the outcome of an investigation.
Protests erupt
The killing sparked protests in West Philadelphia. Several hundred demonstrators took over the streets, video taken by reporters and other observers showed. There was “considerable property damage,” according to the Inquirer.
The police claimed 30 officers were injured as part of the uprising, during which a cop car was set on fire and police fought with demonstrators. Video showed a black pickup truck hitting an officer, who according to police was hospitalized with a broken leg and other injuries. The cop is in stable condition, police said.
“Oh my God, he hit a cop,” the person recording said.
WARNING: the following video is graphic.
After several hours, the crowd reportedly dispersed, though the fury was still evident in a neighborhood that was the site of some of the most heated protests of earlier this summer. "Y'all got mace and a Taser. Y'all brought a gun to a knife fight," one protester told cops in a video taken by Philadelphia Inquirer reporter Samantha Melamed.
Philadelphia cops shot off dozens of tear gas canisters in West Philadelphia on May 31 during demonstrations against the police killing of George Floyd; Outlaw has since put a moratorium on the use of tear gas, and the Philadelphia City Council could soon move to ban its use completely. Police used riot shields and batons on Monday, according to the Washington Post.
City leaders responded to news of the shooting on Monday. Mayor Jim Kenny echoed Outlaw, saying the video “presents difficult questions that must be answered.”
“I spoke tonight with Mr. Wallace’s family, and will continue to reach out to hear their concerns first-hand, and to answer their questions to the extent that I am able,” Kenney said in a statement.
“The Officer Involved Shooting Investigation Unit of PPD will conduct a full investigation. I look forward to a speedy and transparent resolution for the sake of Mr. Wallace, his family, the officers, and for Philadelphia.”
Philadelphia District Attorney Larry Krasner said his office was conducting an investigation as well. “We intend to go where the facts and law lead us and to do so carefully, without rushing to judgment and without bias of any kind,” Krasner said in a statement.
“In the hours and days following this shooting,” Krasner added, “we ask Philadelphians to come together to uphold people’s freedom to express themselves peacefully and to reject violence of any kind.”
President Donald Trump greets Supreme Court Justice Neil Gorsuch as Supreme Justice Brett Kavanaugh looks on ahead of the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020, in Washington, D.C. (photo: Mario Tama/Getty Images
The Radical Implications of the Supreme Court's New Ruling on Wisconsin Mail-In Ballots
Ian Millhiser, Vox
Millhiser writes: "The Supreme Court just handed down an order in Democratic National Committee v. Wisconsin State Legislature determining that a lower federal court should not have extended the deadline for Wisconsin voters to cast ballots by mail."
The Supreme Court’s new decision on Wisconsin mail-in ballots threatens a century of voting rights law.
he Supreme Court just handed down an order in Democratic National Committee v. Wisconsin State Legislature determining that a lower federal court should not have extended the deadline for Wisconsin voters to cast ballots by mail.
The ruling, which was decided by a 5-3 vote along party lines, is not especially surprising. The lower court determined that an extension was necessary to ensure that voters could cast their ballot during a pandemic, but the Court has repeatedly emphasized that federal courts should defer to state officials’ decisions about how to adapt to the pandemic. Monday night’s order in Democratic National Committee is consistent with those prior decisions urging deference.
What is surprising, however, is two concurring opinions by Justices Neil Gorsuch and Brett Kavanaugh, each of which takes aim at one of the most foundational principles of American constitutional law: the rule that the Supreme Court of the United States has the final word on questions of federal law but the highest court in each state has the final word on questions of state law.
This division of power is implicit in our very system of government. As the Supreme Court has explained, the states and the federal government coexist in a system of “dual sovereignty.” Both the federal government and the states have an independent power to make their own law, to enforce it, and to decide how their own law shall apply to individual cases.
If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges.
Nevertheless, in Democratic National Committee, both Gorsuch and Kavanaugh lash out at this very basic rule, that state supreme courts have the final say in how to interpret their state’s law, suggesting that this rule does not apply to most elections.
They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week.
A potentially seismic reinterpretation of American election law
As Gorsuch notes in his concurring opinion, which is joined by Kavanaugh, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct,”
According to Gorsuch, the key word in these constitutional provisions is “Legislature.” He claims that the word “Legislature” must be read in a hyper-literal way. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” he writes.
The implications of this view are breathtaking. Just last week, the Supreme Court split 4-4 on whether to overturn a Pennsylvania Supreme Court decision that also would have allowed some mailed-in ballots that arrive after Election Day to be counted. Both Gorsuch and Kavanaugh were among the dissenters, though because there were no written opinions, neither explained why they would have thrown out the state supreme court’s decision.
We now know why. Based on Gorsuch’s reasoning in Democratic National Committee, it’s clear that both he and Kavanaugh believe the Supreme Court of the United States may overrule a state supreme court, at least when the federal justices disagree with the state supreme court’s approach to election law.
That is, simply put, not how the balance of power between federal and state courts works. It’s not how it has ever worked.
Nor is it correct that the word “legislature” should be read in the hyper-literal way Gorsuch suggests. For more than a century, the Supreme Court has understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
But Gorsuch’s opinion suggests that this longstanding rule may soon be gone (again, as he put it, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules”). State supreme courts may lose their power to enforce state constitutions that protect voting rights. State governors may lose their power to veto election laws, which would be a truly astonishing development when you consider that every state needs to draw new legislative maps in 2021, and many states have Republican legislatures and Democratic governors.
The return of Bush v. Gore
Kavanaugh, for what it’s worth, takes a slightly more moderate approach in his concurring opinion. The Supreme Court of the United States, he writes in a footnote to that opinion, may overrule a state supreme court when the state court defies “the clearly expressed intent of the legislature” in a case involving state election law.
Just how “clear” must a state court’s alleged mistake be? The answer to that is unclear. But it is clear that Kavanaugh rejects the longstanding rule that he and his fellow federal justices must always defer to state supreme courts on questions of state law.
That position could also have profound implications. In 2018, for example, the Pennsylvania Supreme Court struck down gerrymandered maps drawn by the GOP-controlled state legislature. Kavanaugh’s position would allow the Republican-controlled Supreme Court of the United States to overrule such a decision.
Kavanaugh also lifts much of his reasoning from a disreputable source. Before today, the Supreme Court’s decision in Bush v. Gore (2000), which effectively handed the presidency to George W. Bush, had only been cited once in a Supreme Court opinion — and that one citation appeared in a footnote to a dissenting opinion by Justice Clarence Thomas, which was joined by no other justice.
But Kavanaugh quotes heavily from Chief Justice William Rehnquist’s concurring opinion in Bush, which also embraced an excessively literal approach to the word “legislature.” It appears that Bush v. Gore, arguably the most partisan decision in the Court’s history — and one that Kavanaugh helped litigate — is back in favor with key members of the Court.
It’s worth noting that the decision in Democratic National Committee was handed down literally as the Senate was voting to confirm incoming Justice Amy Coney Barrett, a staunch conservative who during her confirmation hearings would not commit to recusing herself from cases involving the 2020 election.
That means that last week’s decision allowing a Pennsylvania Supreme Court decision to stand could be very short-lived. That decision, after all, was 4-4, with Chief Justice John Roberts voting with the Court’s three liberals. With Barrett, the Court’s right flank may well be getting a fifth vote to toss out the state supreme court’s decision — and to order an unknown number of ballots tossed out in the process.
It’s unclear what immediate impact the decision in Democratic National Committee will have on the upcoming election. Last April, about 79,000 ballots arrived late during Wisconsin’s primary election but were counted anyway due to a lower court decision. The Supreme Court’s decision in Democratic National Committee will prevent similarly late ballots from being counted during the 2020 general election. The deadline for Wisconsin mail-in ballots to arrive is 8 pm on Election Day.
Though 79,000 ballots could easily swing an election, that’s only if it is close (in 2016, Trump won the state by a razor-thin margin of some 22,000 votes). A large enough margin could minimize the impact of the Court’s decision, and voters can ensure that their vote is counted by voting early enough.
But while this decision may not change the result of the 2020 election, its impact is still likely to be felt for years or even decades — assuming that Republicans retain their 6-3 majority on the Supreme Court. American election law has entered a chaotic new world, one where even the most basic rules are seemingly up for grabs. And the Supreme Court just sent a fairly clear signal that it may be about to light one of the most well-established rules on fire.
Researchers and work crews look at items pulled from the ground during the search for remains in Tulsa, Oklahoma, this week. (photo: Mike Simons/AP)
At Least 10 Bodies Found During Search for Tulsa Race Massacre Victims
Associated Press
Excerpt: "At least 10 bodies have been found in an unmarked mass grave at a Tulsa cemetery where investigators are searching for remains of victims of the 1921 Tulsa Race Massacre, a state official said on Wednesday."
“What we were finding was an indication that we were inside a large area … a large hole that had been excavated and into which several individuals had been placed and buried in that location. This constitutes a mass grave,” said Oklahoma state archaeologist Kary Stackelbeck.
Ten coffins were discovered with what is presumed to be one person in each coffin, Stackelbeck said. She said further examination was needed.
Forensic anthropologist Phoebe Stubblefield, a descendant of a survivor of the massacre who is assisting in the search, said it would take considerable time to identify the remains and determine whether they were victims of the massacre.
The search began on Monday and is the second this year after an unsuccessful search in another area of Oaklawn cemetery ended in July.
Tulsa’s mayor, GT Bynum, who first proposed looking for victims of the violence in 2018 and later budgeted $100,000 to fund it after previous searches failed to find victims has said efforts will be made to find any descendants of the victims who are identified.
Oaklawn cemetery in north Tulsa is near the Greenwood district where the massacre took place.
The violence took place on 31 May and 1 June in 1921, when a white mob attacked Tulsa’s Black Wall Street, killing an estimated 300, mostly Black, people and wounding 800 more while robbing and burning businesses, homes and churches.
The massacre – which happened two years after what is known as the “Red Summer”, when hundreds of African Americans died at the hands of white mobs in violence around the US – has been depicted in recent HBO shows Watchmen and Lovecraft County.
The fourth day of protests in Krakow, Poland, against the Constitutional Court ruling on tightening the abortion law. (photo: Omar Marques/Getty Images)
Poland Is in Revolt Against Its New Abortion Ban
Ewa Majewska, Jacobin
Majewska writes: "Last Friday, Poland's Constitutional Court banned almost all abortion, as part of a wider Catholic-conservative offensive against women's rights."
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A firefighter carries a hose while battling the Glass Fire in a Calistoga, California vineyard, Oct. 1 (photo: Noah Berger/AP)
Experts to Western States: Time to Finally Fight Wildfires With More Fire
Eric Westervelt, NPR
Westervelt writes: "Earlier this month California Gov. Gavin Newsom, looking uncharacteristically wan and frustrated, stood in the burnt ruins of an elementary school in Napa County obliterated by yet another catastrophic blaze."
It's a scene the governor acknowledged has become painfully familiar across the Golden State.
"Regions that have been torn asunder by wildfires seemingly every single year, this drum beat where people are exhausted, concerned, anxious about their fate and their future not just their safety," Newsom said, adding with a hint of exhaustion, "so clearly we have our work cut out for us to deal with not only suppression, but prevention strategies."
Top of the prevention strategy list for fire ecologists is more fire. This historically destructive wildfire season across much of the Western U.S. has wildfire experts calling for a dramatic increase in the numbers of acres intentionally burned. (That's when trained staff deliberately set fires as a form of control.) They also want significant new investment in workforce training and infrastructure to scale up prescribed burns on public and private lands.
Vastly increasing the number of these low-intensity, carefully managed fires is key. Experts say it reduces dangerous levels of highly combustible fuel and underbrush built up over more than a century of trying to snuff out most every forest fire. The conditions set by that longstanding federal and state policy are now worsened by climate change, with fires growing larger, more frequent and more destructive.
"Some people might say that they're scared of doing prescribed fire. But you know, I'm scared what will happen in the next 10 years if we don't get prescribed fire," says fire ecologist and professor Kate Wilkin with the Wildfire Interdisciplinary Research Center at San Jose State University.
'Use more fire to fix region's wildfire problem'
In Colorado, three of the state's five largest wildfires have burned this year, including the still-burning East Troublesome and Cameron Peak blazes. In California, five of biggest on record have occurred just since August.
Wilkin recognizes how awful it's been for many in recent years: people who've lost loved ones, homes, businesses and entire communities damaged or destroyed. There's the fear, stress and the smoke-filled air drifting hundreds of miles. So she knows most people in the West right now might not want to hear it, but the West needs to strategically use more fire to fix the region's wildfire problem.
In terms of forest health, Wilkin says, California is supposed to burn. So when the state topped 4 million acres burned earlier this month, setting a record, Wilkin thought, "Wow, we're actually getting into the ballpark of how many acres used to burn in California every year. Historically, somewhere between 4.4 million and 12 million acres used to burn every year."
By contrast, in the past few years California intentionally burned roughly 50 thousand acres on public lands. In fact, a study published in the journal Fire showed that prescribed burns on federal lands in the West over the past 20 years stayed flat or fell despite ongoing calls to do much more.
'Losing this battle every year'
Bureau of Indian Affairs (BIA) was the only federal agency to substantially increase prescribed fire use, the study said, likely due to tribal self-governance and a historic embrace of intentional fire.
Federal and California officials recently signed an agreement to try boost that significantly: the new goal is to treat about 1 million acres a year with combined thinning and controlled burns.
But experts warn that states continue to set ambitions prescribed fire goals they never reach. And critics say that new goal is nowhere near enough to meet this moment.
"It's not something in which incremental, cautious decisions are going to solve the problem," says Malcolm North, an outspoken research scientist with the U.S. Forest Service who has long advocated for more controlled burns. "We have some of the best firefighting forces in the in the world. And yet we're obviously losing this battle every year, both in terms of cost, acreage and damages."
North says the public has to realize that they're going to get fire one way or another. "But you can have much better outcomes when you're proactively putting the fire on the landscape rather than reactively trying to suppress it and then dealing with the inevitable escapes," he says
He and others say a major obstacle to expanding controlled burns is institutional inertia in these large, risk-averse state and federal agencies. Critics say both Cal Fire and the U.S. Forest Service largely continue to embrace an antiquated 'fight every fire' ethos.
Leaders in federal land management positions, North says, need to be much more supportive and bold in their use of targeted use of prescribed fire. There needs to be a cultural shift in the public's understanding about both the inevitability of fire, he says, and a shift within the leadership of these agencies.
"The people who end up getting promoted and often end up in the leadership positions are very good at being cautious," North says of his own employer the U.S. Forest Service. "You really need a pretty fundamental and aggressive change to what we're doing. And that's not inherently the behavior that you often get in leadership in these in these positions."
Still, North recognizes the enormous challenge for managers: it's not popular or easy to intentionally light fires to clear out built-up fuel when states are being ravaged and citizens reeling from annual catastrophic wildfires.
If historically flawed forest management is half the problem here – battling most every fire - the other half is the world's warming climate with hotter, drier conditions igniting a Century of built-up fuel.
"It's a great example of climate change as a kind of an accelerant," says Michael Wara with Stanford's Woods Institute for the Environment. "This is a problem that's been building gradually for decades. But what is happening this decade is the problem has kind of turned from this thing that we can manage to a monster."
'Problem too big for states to solve on their own'
And taming that monster through intentional fire, Wara says, is vital yet costly: It's estimated that thinning and prescribed burns can cost somewhere between $1,500 and $2,000 per acre.
The problem is simply too big for states to solve on their own, especially since the federal government owns the vast majority of public lands in the West, not the states.
"Coming up with the money to do this at scale has always been a major obstacle," Wara says. "We need sustained federal and state financial support if we're going to have any hope of moving the needle and bring good fire back into the landscape in a way that will be big enough to actually make a difference."
Another challenge too big to solve alone is the lack of a trained workforce to prep and conduct more controlled fires. Fire suppression crews remain stretched incredibly thin across much of the West. And putting out fires and setting controlled blazes "really are two different skill sets," says University of California, Berkeley Fire Science professor Scott Stephens who has long documented the positive impact of fire on the forest eco-system. "So it really does require us to develop that workforce."
Stephens and other experts in fire ecology want the region to train up an entirely new force, like the one the southern U.S. already has.
"There are so many people in the South that are certified prescribed fire burn bosses and practitioners, and they don't work in fire suppression at all," he says adding, "we just don't have that out here."
Despite the long, bitter fights in Washington, D.C., over how to manage the nation's forests there are currently several bills in the U.S. Senate that would significantly boost federal funding for intentional fires. One of them even has a little bipartisan support. And two of the bills call for the creation of a Western U.S. prescribed fire training center to build that much-needed workforce to learn to prep and set fires, not just put them out.
Other big barriers to doing more intentional burns include tough environmental rules and strong liability laws that can slow the pace and scale of set blazes. For example, some intentional burns have taken years to plan and implement.
Then there's safety. The vast majority of these fires are done without harm to people or property. But not all. A 2012 prescribed fire in Colorado killed three people and damaged or destroyed more than two dozen homes.
Another example is a notorious U.S. National Park Service controlled burn 20 years ago near Los Alamos, New Mexico got out of control when high winds picked up.
Some 400 family homes were burned. The federal nuclear lab there was threatened, with a few of its buildings damaged. Withering criticism and congressional hearings followed.
"The plan was flawed, the higher ups rubber stamped it, the burn boss was not qualified to do a fire this big," then-Congresswoman Heather Wilson, a Republican, told a house hearing on the burn shortly after the fire.
That Los Alamos fire kind of became the Enron or Solyndra of controlled burns: a rare but spectacularly botched event that ends up having out-sized influence and ripple effects. Twenty years on, the Los Alamos debacle is still felt today across federal land agencies.
It's a ghost that needs to be exorcised, ecologists say, because controlled burns are largely safe.
"The perception there is definitely far different than the reality, which is that the fires generally have been able to be controlled," says the Forest Service's Malcolm North.
For fire-ravaged communities the hard truth is that these shifts to increase controlled blazes and reduce catastrophic fire risk will take years, if not decades, of sustained effort.
"So that's the real problem because, you know, it isn't something that you can invest in wholeheartedly, say, in three years and guarantee yourself a result," says UC Berkeley's Stephens. "It would take a 10-year effort, but probably even closer to 20 to really start to change kind of the fundamentals" of wildfire risk.
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