In miniature, August 21

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The timing of Montgomery County’s ill-fated schools order

Invoking its public health powers, Montgomery County late Friday announced that it was banning private and religious schools “from physically reopening for in‐​person instruction” through October 1, no matter what combination of precautions (outdoor instruction, ventilation, small numbers only, masks, distancing) they might have been planning to manage risk.

The move sparked an instant furor in the Washington, D.C. suburban community. Gov. Larry Hogan was among the first to voice criticism, and on Monday he signed an executive order withdrawing from county health boards the authority to order school closings, saying that school districts themselves should make that decision for public schools, and that counties should not force private/​religious schools to close so long as they are operating within state and federal safety guidelines.

I’d been puzzled about why, in its now‐​overturned order, Montgomery County had selected a particular date, October 1, two months out—did that reflect some sort of public health or scientific insight? Then someone pointed out that September 30 is the cutoff date in Maryland to count official public school enrollment. Many real‐​world consequences, including but not limited to the magnitude of state and federal grants, depend on the count as of that date.

Note also that at a press briefing July 22, Montgomery County Public Schools (MCPS) Superintendent Dr. Jack Smith said MCPS enrollment of new students was coming in well below expectations, with only about 300 K-12 new students enrolled as of the beginning of July compared with the more than 2,500 that had been projected by the end of August.

The safety issues here are complex and I don’t know what the right answers are, or whether there is exactly one such answer right for all kids and schools. While Montgomery County and nearby areas have had a lot of success getting COVID-19 transmission levels down, both the local prevalence of the virus and the state of knowledge about transmission and risk change constantly.

But I can see why there’s a problem in leaving an arbitrary power to shut down private and religious schools in the hands of their biggest competitor.

[cross-posted from Cato at Liberty]

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Repeal LEOBR, the police-unaccountability law

I’m in this weekend’s Frederick News-Post with an opinion piece urging the General Assembly to repeal a law that has been central to obstructing police accountability in Maryland, the 1974 Law Enforcement Officers’ Bill of Rights (LEOBR).

Since Maryland adopted its first-in-the-nation law in 1974, it has spread to 15 other states, causing problems along the way. Among states with their own versions of the law are Minnesota, where a video recorded George Floyd’s asphyxiation while in police custody, and Kentucky, where officers’ fatal shooting of Breonna Taylor in her Louisville apartment has sparked widespread outrage….

Don’t let the focus slip this time. LEOBR is designed to result in impunity, and it should go.

An annotated copy of the law as revised in 2015 is here (see also here). The U.S. Department of Justice investigatory report on the Baltimore City Police Department includes discussion of some problems caused by the law. In 2015, before the modest legislative revisions, the ACLU commissioned a report on the law (and the Baltimore police union contract, with which it interacts) from Samuel Walker of the University of Nebraska at Omaha.

Note that police unions in places like Baltimore have negotiated contract provisions that institute some of the same barriers to discipline, or go even further, to the public’s detriment. Because of these provisions, repealing LEOBR would fix only part of the problem. For example, one contract says the city cannot even begin disciplinary hearings while criminal proceedings are pending against an officer. Other contract provisions have provided for disciplinary proceedings to be kept secret from the public, promote expungement of public complaints, or forbid job consequences when an officer is placed on the “do-not-call” list of those whose testimony would be highly vulnerable to impeachment by defense lawyers — although the ability to testify credibly should be one of the prerequisites of a police job. Legislation could help here by restricting bargaining to economic issues, such as wages, rather than discipline and investigation.

The New York Times, together with many other publications, has covered the contentions of Del. Gabriel Acevero (D-Montgomery Village, Germantown) that he was fired by his employer, the MC-GEO union that represents many Montgomery County employees, because he refused to back down from his work on legislation to advance police accountability. More background on the shifting politics in Annapolis from Maryland Matters (citing Sen. William C. Smith, Jr.). More coverage from January on death of handcuffed William Green in Prince George’s police custody (“They deserve justice just like citizens do. They should give prompt statements just like citizens do. They should not be given time to cover up their crimes, which the police officer’s bill of rights was designed to let them do,” says family’s attorney); Washington Post letter to the editor last October on Silver Spring case.

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In miniature, July 6

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“Repeal the Linda Lamone for Life Law”

Adam Pagnucco at Seventh State: “The bill [entrenching this Maryland official from removal] is so restrictive that the elections administrator could not be removed from office even if all five members of the State Board of Elections vote to fire her, even if she were convicted of first-degree murder, sentenced to death row and stripped of her voting rights. Only when the state Senate approves a replacement could she be removed. Now that’s job security.”

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In miniature, May 29

  • My law blog Overlawyered ceases publication this weekend after nearly 21 years, you can read its Maryland archives here;
  • How about “no.” Does “no” work for you? “Baltimore Wants To Sue Gun Makers Over Gang Violence” [Cam Edwards, Bearing Arms]
  • The environmental group fretted that suspending the bag tax will leave “the public with a false sense of security in encouraging single-use plastic shopping bags” which “are difficult to clean.” Yo, Sierra Club! That’s why they’re called “single-use” bags [Jim Bovard, American Conservative; Josh Kurtz, Maryland Matters]
  • Precinct-level reporting, confidentiality, ballots returned without signatures: the details of vote-by-mail (VBM) Maryland still needs to work out [Cheryl Kagan, Howard Lee Gorrell]
  • Some good ideas in here for your county or municipality, too: “D.C., Maryland Jurisdictions Start Deferring Taxes, Fees and Regulations” [Adam Pagnucco, The Seventh State]
  • Montgomery County development politics analyzed along the lines of the classic Bootleggers and Baptists model [Arnold Kling]

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In the FNP: “Why the ‘Reopen Maryland’ lawsuit failed”

A federal judge on Wednesday rejected the lawsuit filed by Del. Dan Cox challenging Gov. Larry Hogan’s public health orders seeking to limit the COVID-19 outbreak. I’m in today’s Frederick News-Post with an opinion piece on that. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In what you might call a long-shot move, Cox’s suit [sought] to minimize the seriousness of what it called the “alleged on-going catastrophic health pandemic” — which has killed more than 2,000 Marylanders so far — and drew sharp rebuke from the judge, who wrote: “even if these assertions were true, the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.”

In his statements outside the court, Del. Cox has told a radio audience that “ninety-nine percent of the population is not in danger with this virus,’ and has said on Twitter that ‘Studies show up to 70-86% of the public already have or had coronavirus.” Many medical authorities would sharply disagree with both contentions….

An unusual aspect of the suit was Del. Cox’s claim to have been personally threatened by an aide to Gov. Hogan. Shortly before filing the lawsuit Cox repeatedly asked the aide if he, Cox, could be arrested for speaking at a Reopen rally, and the aide answered that the delegate should read the text of the relevant order if he wanted to know what it said. Cox characterized this exchange as a threat. (No one was arrested for speaking at the rally.)

Judge Blake ruled that the restriction on large gatherings is what the law calls a ‘time, place, and manner’ restriction not based on the content of speech, noted that “there is no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with,’ and summed things up: ‘the Governor has not silenced Cox or any other legislator.”…

The text of this lawsuit was full of rhetorical flights and digressions into points not germane to law. It appeared to be written with some audience in mind other than federal judges.

That’s one reason, when Cox takes the case to the Fourth Circuit federal appeals court — as he has vowed to do — he will find his work cut out for him.

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District 4, we have a problem

As mentioned last week, I’ll be having more to say about the lawsuit filed by Delegate Dan Cox (R-4th), together with Dels. Neil Parrott and Warren Miller and plaintiffs that included business owners and clerics, challenging Maryland Gov. Larry Hogan’s actions in response to the “alleged on-going Catastrophic Health pandemic.” (Maryland Attorney General Brian Frosh has now filed a motion to dismiss in the suit.) In the mean time, however, Delegate Cox has been making quite a stir with his Twitter feed:

This tweet is spectacularly irresponsible; it’s just shocking. I wasn’t the only one who thought so, either. WTOP picks it up (“Maryland Del. Cox appears to promote Bill Gates coronavirus conspiracy theory”), linking to me and to Republican strategist Frank Luntz (“If you want to be a respected leader, you must lead intelligently. This Maryland state legislator is doing the exact opposite of that.”)

This is only one of a series of dubious pronouncements from Del. Cox in recent weeks. On April 21 he asserted that “Studies show up to 70-86% of the public already have or had coronavirus so of course increased testing will increase cases.”

Up to 70-86%? Really? As you can see above, Cox was immediately challenged by reporter Evan Lambert of Fox5 DC, and the following exchange resulted:

The most charitable interpretation of that exchange is that Del. Cox very badly misunderstood the point of the Science magazine article referenced. Serological studies had already begun to come out then, and have continued to arrive since, indicating that public exposure to the virus is far below 70-86%, and likely in single digits.

On May 4 Del. Cox appeared on WFMD’s Bob Miller show in Frederick, where he said (at 2:00): “we do know that the vast majority, ninety-nine percent of the population, is not in danger with this virus. And that’s the science, it’s not, you know, politics speaking, that’s the science.”

That “99 percent” not in danger wasn’t a slip of the tongue, I think, since Del. Cox repeats it at 17:00 in the interview. And saying that 99 percent of the population is not in danger with this virus — that is, that only one percent of the population does have anything to fear — is again false and, as health advice, horrendously bad.

Delegate Cox’s Twitter response to me is here.

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Dels. Cox, Parrott, Miller sue Hogan over pandemic measures

Yesterday Delegate Dan Cox (R-4th), together with Dels. Neil Parrott and Warren Miller and plaintiffs that included business owners and clerics, filed a lawsuit challenging Maryland Gov. Larry Hogan’s actions in response to the “alleged on-going Catastrophic Health pandemic” — nice touch, that “alleged.”

Del. Cox might want to be more careful with the cut-paste button next time, to judge by this excerpt from p. 82 of his complaint.

excerpt of lawsuit against Maryland governor mistakenly using name of Virginia governor

The new complaint is here (more papers); I’ll have more to say about it later. Earlier, I posted in this space about some of my disagreements with Del. Cox’s interpretations of Maryland statutes and of the U.S. Constitution. Yesterday, and not specific to Maryland, I published this article on why most of the public health orders issued against COVID-19 are constitutional — in the view of today’s judges, judges of the pre-New Deal era, and framers of law at the time of the adoption of the U.S. Constitution.

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At-home COVID-19 test available in 46 states, but not Maryland. Why?

Following FDA approval, LabCorp has now introduced an at-home test for the COVID-19 virus. It will initially be made available to health care workers and first responders in 46, but not all 50 states — the missing states being New York, New Jersey, Rhode Island, and Maryland. The reason, according to an Associated Press report, is that several states have laws on the books that restrict testing with at-home collection kits. I examine the frustrating situation in a new Cato post.

After I published the piece, I was contacted by Paul Celli, public health administrator for clinical and forensic laboratories at the Maryland Department of Health Office of Health Care Quality, who wrote to say the AP article is incorrect in listing Maryland as a state that bans at-home testing. Whatever may be the situation in the other three states, “Maryland is not banning this Pixel at‐​home collection device (it is not a test) for use at select Labcorp testing locations.” A Maryland legislative source points out that last year, state lawmakers approved and Gov. Hogan signed SB 495, a measure aimed at liberalizing access to medical testing by removing some of the restrictions in effect earlier. Mr. Celli writes that even before that change, rather than bar use of this particular test the state “probably would have exercised enforcement discretion in such cases where the company appears to be providing services pursuant to a physician or other authorized provider order for the test.”

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