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News Analysis — RI New Gun Laws: Constitutional problems certain to lead to lawsuits

Through a series of weird parliamentary maneuvers, RI hurled itself into a legal nightmare on gun control. Three proposed bills would ban carrying long guns (rifles and shotguns) in public except for hunting (H.7358/S.2825), acquisition of firearms and ammunition by anyone under 21 (for whom handguns were already prohibited) (H.7457/S.2637), and possession of magazines capable of holding more than 10 rounds (H.6614/S.2653). All three were passed by both chambers of the General Assembly, sending them to the governor who said he would sign them into law.

Although the first two proposals passed both the House and Senate easily, the magazine capacity ban faced stiff opposition in the Judiciary committees of both chambers. The House Judiciary Committee on June 9 only passed it 10-8 because the speaker and majority leader used their rarely-exercised power to vote ex-officio (by virtue of their office) as members of every committee to forward the bill to the floor, and the Senate Judiciary Committee yesterday deadlocked on a tie vote even with the Senate president and majority leader voting ex-officio in favor. Because a tie vote in committee kills the bill, Senate leadership later in the day used a parliamentary maneuver to take up instead the House-passed bill for immediate consideration and pass it in concurrence, an extremely unusual move that requires a two-thirds super-majority vote and is almost never employed for anything controversial; the Senate voted 24-11 to override an objection to immediate consideration, the thinnest of margins. The Senate session ran almost six hours.

The RI magazine capacity bill is especially controversial because it provides for no grandfather clause that would allow owners of newly-banned magazines to keep them. While courts have generally held bans on manufacture and sales of magazines to be legal, no court decision currently in effect has allowed such a ban without a grandfather clause. California banned large magazines in 2000 but repealed its grandfather clause in 2016, leading to a flurry of litigation (Duncan v. Bonta) now pending before the US Supreme Court; an internal conference May 26 was held to decide whether to hear the case (certiorari), but legal observers expect that a major gun rights case on interpretation of the Second Amendment (New York State Rifle & Pistol Association Inc. v. Bruen) due to be decided by the end of this month will lead to the magazine case being remanded back to the lower courts.

By jumping into this fray, the RI ban on large magazines is certain to drag the state into litigation. The RI bill requires owners of existing magazines to either permanently modify them to reduce their capacity, surrender them to the police, or transfer them to a federally licensed firearms dealer for transfer out of state; violations constitute a felony punishable by up to five years imprisonment, a $5,000 fine, and forfeiture of the magazine. The bill exempts active and retired law enforcement officers as well as active members of the military and National Guard.

Magazines are low-technology devices consisting of little more than a box and a spring, unchanged in fundamental design for more than a century. They are designed to fit a particular firearm, either a long gun or a handgun, so they generally are not modifiable without making them incompatible with that firearm. Highly popular current models probably would be served by manufacturers making new reduced-capacity magazines compliant with the ban, but the vast majority of magazines are old, often decades old, and their sudden unavailability would render their companion firearm itself useless. The generally accepted estimate is that about half of all magazines in private hands hold more than 10 rounds. Because magazines can be swapped in seconds, it is far from clear that capacity limits are effective even if the goal is to reduce rate of fire.

Magazine capacity letter, Attorney General Peter Neronha to House Judiciary Committee Chair Robert Craven, June 10, 2022.

A grandfather clause on the magazine ban was vociferously opposed by Attorney General Peter Neronha in a letter to the House Judiciary Committee on June 10 (the day after its passage by the committee): “Put simply, inclusion of a grandfather clause will render these laws unenforceable, and our public safety gains will be lost. Most high-capacity magazines do not have identifying marks, serial numbers, or registration numbers, which could be used to indicate when they were manufactured or sold. Because law enforcement would be unable to verify whether an individual possessed a magazine prior to the effective date of this legislation, such an exemption would serve as a readily available defense for every prospective criminal defendant.” Neronha in his letter compared the six months owners would have to comply with the magazine ban to the prior one month to comply with “ghost gun” (homemade guns without serial numbers) ban, but of course there are thousands and probably tens of thousands of about-to-be-banned magazines while there are almost no “ghost guns” extant.

“This is rather breathtaking. In just a few months, tens of thousands of Rhode Island gun owners could become felons,” the RI Republican Party said in a statement this morning. “Never have so many law-abiding citizens been put at risk for jail time since the days of Prohibition when possession of alcohol was a crime. A few weeks ago, the General Assembly decided to pass a law that expunged any criminal convictions related to marijuana possession even though, at the time, marijuana was illegal. Now that same General Assembly wants to make possession of certain capacity magazines a crime even though the magazine was bought at a time when it was legal in Rhode Island. This makes no sense.”

Entering a similar legal swamp, the RI ban on possession of any firearms by those under age 21 is even more expansive than a ban on possession of some firearms (semi-automatic centerfire rifles) that was ruled unconstitutional by the US Court of Appeals for the Ninth Circuit on May 11 (Jones v. Bonta). “Young adults have the same constitutional rights as the middle-aged or the elderly – even if some of them may not necessarily have the wisdom or judgment that age and experience can bring – for the same reason that we do not limit fundamental rights based on supposed intelligence, maturity, or other characteristics” the court wrote, later noting that “young adults have a Second Amendment right to keep and bear arms. Because that right includes the right to purchase arms, both California laws burden conduct within the scope of the Second Amendment.” (The court upheld a second California law that required some purchasers to first obtain a hunting license.) While RI in the First Circuit is not strictly bound by Ninth Circuit precedent, the recent court ruling bodes ill for the survival of the new RI ban.

The ban on carrying long guns in public may likewise face constitutional problems, if as expected the US Supreme Court rules within the next few weeks that there is some Second Amendment right to carry a firearm in public (New York State Rifle & Pistol Association Inc. v. Bruen), thereby making licenses or permits to carry in public a right subject to increased scrutiny if denied. While RI law does contain a provision that local police “shall issue” permits to carry handguns in public, in practice police departments have been reluctant to comply, even refusing to accept applications, without being sued.




Monkeypox in RI: First probable case identified

RI has detected its first probable case of monkeypox virus. The state Department of Health (RIDOH) said in a statement that a male patient in his thirties who resides in Providence County is hospitalized in good condition after testing positive for an orthopox virus, which is a genus of viruses that includes moneypox. The case is awaiting confirmation specifically for the monkeypox virus from the federal Centers for Disease Control and Prevention (CDC).

The RI case is believed to be a result of travel to Massachusetts, where according to the CDC one case was previously identified. RIDOH said they are conducting contact tracing to identify individuals who may have been exposed to the RI patient while he was infectious, and contacts will be monitored for three weeks after their last day of exposure.

Interim RIDOH Director James McDonald said in the statement, “While monkeypox is certainly a concern, the risk to Rhode Islanders remains low – even with this finding. Monkeypox is a known – and remains an exceedingly uncommon – disease in the United States. Fortunately, there is a vaccine for monkeypox that can be given before or after exposure to help prevent infection. RIDOH continues to engage in active case finding and we have been communicating the latest information with healthcare providers so that they have the information they need to help us ‘identify, isolate, and inform.’”

States with cases of monkeypox as of June 8, 2022. (Source: cdc.gov/poxvirus/monkeypox/response/2022/index.html)

As of yesterday (June 9), the CDC had confirmed only 40 monkeypox cases in the United States. Worldwide there have been 1,200 cases across 29 countries primarily in Western Europe, including the United Kingdom, Spain, Portugal, and Germany, although 100 were in Canada. RIDOH said, “While anyone who has been in close contact with a confirmed or suspected monkeypox case can acquire monkeypox, people who have recently traveled to a country where monkeypox has been reported or men who have sex with other men are currently at a higher risk for monkeypox exposure. It is important to avoid stigmatizing any groups that may be considered at higher risk of exposure to the disease.”

Because the risk of exposure is so low, precautionary vaccination against orthopox viruses is recommended by the CDC only for clinical laboratory workers or researchers handling animals susceptible to infection, but for anyone actually exposed “CDC recommends that the vaccine be given within 4 days from the date of exposure in order to prevent onset of the disease. If given between 4–14 days after the date of exposure, vaccination may reduce the symptoms of disease, but may not prevent the disease.”

Monkeypox and smallpox

Smallpox is another orthopox virus and until its eradication a half-century ago it killed about 30% of those infected. Monkeypox has a case-fatality rate of 3-6%, according to the World Health Organization (WHO), but there are two known variants commonly termed Central African and West African, the former about twice as deadly as the latter. Monkeypox typically causes death or severe injury through complications such as pneumonia, encephalitis, or sepsis, all highly amenable to effective treatment with modern healthcare, and death outside of Africa is extremely rare. Usually monkeypox patients recover on their own within two to four weeks.

It is believed those vaccinated against smallpox before routine vaccination for the general public ended in 1972 likely retain significant protection against monkeypox even decades later; the US military continued routine vaccination against smallpox until 1991. “Past data from Africa suggests that the smallpox vaccine is at least 85% effective in preventing monkeypox,” the CDC said, but also cautioned that “Smallpox vaccination can protect you from smallpox for about 3 to 5 years. After that time, its ability to protect you decreases.”

Monkeypox ways of infection and symptoms

Infection with monkeypox usually occurs either from direct contact with infected animals (blood, bodily fluids, or lesions), especially rodents, or from close contact with infected humans (respiratory secretions, skin lesions, or recently contaminated objects). “Transmission via droplet respiratory particles usually requires prolonged face-to-face contact, which puts health workers, household members and other close contacts of active cases at greater risk,” according to the WHO.

Monkeypox can spread “through contact with body fluids, monkeypox sores, or shared items (such as clothing and bedding) that have been contaminated with fluids or sores of a person with monkeypox. Monkeypox virus can also spread between people through respiratory droplets typically in a close setting, such as the same household or a healthcare setting. Common household disinfectants can kill the monkeypox virus,” RIDOH said. “Monkeypox is not known to spread easily among humans; transmission generally does not occur through casual contact. Human-to-human transmission occurs primarily through direct contact with body fluids, including the rash caused by monkeypox. Transmission might also occur through prolonged, close, face-to-face contact. The time from someone becoming infected to showing symptoms for monkeypox is usually 7−14 days but can range from 5−21 days. Infected people are not contagious before they show symptoms.”

“Symptoms of monkeypox include fever, headache, muscle aches, exhaustion, and swollen lymph nodes. Infected people develop a rash, often beginning on the face then spreading to other parts of the body, that turns into fluid-filled bumps (pox). These pox lesions eventually dry up, scab over, and fall off. The illness typically lasts 2−4 weeks. Currently, there is no proven, safe treatment for monkeypox, though the limited evidence available indicates that smallpox treatments may be useful. Most people recover with no treatment,” RIDOH said. “Anyone who has symptoms of monkeypox should call their healthcare provider before going to the office for an appointment. Let them know you are concerned about possible monkeypox infection so they can take precautions to ensure that others are not exposed.”




RI “Don’t Say Gay” (or Anything Else) Bills: Dead in the water

Rep. Patricia Morgan testifying on her bill H.7539 before the RI House Education Committee, Apr 11, 2022.

RI has not escaped the national trend of proposed legislation that would impose restrictions on discussing sexual orientation or gender identity in public schools or on teaching history in such a way as to make students feel discomfort on the basis of race, sexual orientation or gender identity. Rep. Patricia Morgan (R-West Warwick), who has a master’s degree in education and is a certified school principal, introduced H.7539. The bill received a hearing before the Education Committee on April 11 – but the bill has not moved forward and is widely assumed to be dead with no chance of passage; over the course of two-and-a-half hours, numerous legislators and members of the public testified against it so overwhelmingly that the overall impression was that they used the bill as a punching bag.

Rep. Patricia Morgan on Twitter, Dec 28,. 2021.
(Source: https://twitter.com/repmorgan/status/1475844670542467083)

While couched in neutral terminology, H.7539 is so vague as to what it prohibits that it would inevitably chill discussion – which seems to be its real goal. The text provides, “Racial slurs or terms that describe race, ethnicity, gender or religion in a pejorative context shall not be presented or used in schools. Examples of prohibited terms include ‘supremacy,’ ‘racial guilt,’ ‘racial fragility,’ and other racial slurs or terms used to cast negative opinions on individuals based upon race, ethnicity, gender, or religion.” But it would be impossible to teach legitimate history without explaining that slavery and Jim Crow were grounded in and justified by white supremacy, and there is no shortage of primary documentary evidence for that, including the acts of secession by Southern states as to why they joined the Confederacy in the Civil War. The bill text includes a laundry list of political myths that are impossible to reconcile with real history, such as “Meritocracy or traits such as a hard work ethic are not racist but fundamental to the right to pursue happiness and be rewarded for industry.”

In his testimony, Steven Brown of the RI ACLU pointed out that the bill claims to oppose censorship while mandating it, with explicit bans such as “Schools shall not use the 1619 Project curriculum or any other curricula that pursues a predominantly ideological and/or activist outcome… Values, psychological and medical counseling, and political activism shall not be taught in classrooms or in any school setting.” Organized by The New York Times, the 1619 Project offers an interpretation of American history beginning with the date that enslaved Africans were first brought to what would become the United States; historian Nikole Hannah-Jones was awarded a Pulitzer Prize for her contribution. As Brown sarcastically said, eliminating every book from the school curriculum with a viewpoint would result in nothing but The World Almanac.

The bill also takes aim at issues important to the LGBTQ community: “Sex education shall not explore sexual preference, gender dysphoria, or sexual lifestyles.” Schools must notify the parents of transgender children regardless of circumstances and even potential danger: “Children shall be addressed using their common names and the pronouns associated with their biological gender unless parental or guardian permission to do otherwise is obtained.” The bill is closely modeled on similar legislation actually enacted in Florida that opponents have ridiculed as the “don’t say gay” bill because its terms are so expansive as to plausibly prohibit a first-grader telling classmates that they have two mommies or two daddies.

A parallel bill, S.2501 in the Senate, sponsored by Sen. Elaine Morgan (no relation), a South County Republican, seems to have received even less consideration than P. Morgan’s bill in the House, not even scheduled for a committee hearing since it was introduced Mar 1. The E. Morgan bill bans transgender athletes in schools, restricting competition to the sex at birth: “If disputed, a student may establish sex by presenting a signed physician’s statement that shall indicate the student’s sex based solely on: (A) The student’s internal and external reproductive anatomy; (B) The student’s normal endogenously produced levels of testosterone; and (C) An analysis of the student’s genetic makeup.”

The controversy has been fomenting for months. Conservative web site Ocean State Currents reported accusations on Feb 16 by Bob Chiaradio that Westerly public schools were making available “pornographic materials,” citing the books Gender Queer, Fun Home, and Beyond Magenta. These books are not regarded as pornographic by mainstream educators, and they have won numerous awards: Beyond Magenta was named the 2015 winner of the Lambda Literary Award for LGBT Children’s/Young Adult Literature, and the Broadway production based on the Fun Home graphic novel won five 2015 Tony Awards, including Best Musical.

Another conservative web site, Legal Insurrection, published an article by Providence Public Schools teacher Ramona Bessinger arguing that traditional historical subjects, such as the Holocaust, were being pushed out of the curriculum: “American history now is being retold exclusively from the perspective of oppressed peoples during the Revolutionary period through to the Civil War, and also in the literature of the Civil Rights movement. From my position in the classroom, it seemed that much of American history and literature was getting wiped out.” She alleged that false history was being introduced: “In some cases the book covers browned out the faces of historical characters like Lincoln to look black or brown, none of the books were recognizable, and all the booklets seemed to revolve around slavery or oppression. Perplexed, I thought there was a mistake. I asked a teacher leader what was going on and he looked jokingly at me saying ‘Comrade, we were told to remove all classroom sets of reading material in order to make room for the incoming sets of books.’ I laughed, assuming this was a joke. But it was not a joke, this was real and happening in my school, in my classroom.”

Chiaradio and Bessinger were supposed to be the principal speakers and presenters at an event scheduled for the evening of March 16 at Brewed Awakenings coffeehouse in Warwick, but it was canceled due to concerns about protesters showing up. As it happened, many people from both sides attended the event anyway, although Warwick Police kept the opposing groups separated.

Despite all of the attention and controversy given to local versions of “don’t say gay” bills in RI, they appear to have no chance of passage.




Pot in Every Pot: RI Legalizes Recreational Cannabis

Recreational cannabis will be legal in RI under a new bill that will be signed into law at a ceremony later today (Wed, May 25) announced by Gov. Daniel McKee for 3:15pm on the south plaza of the State House. Motif plans to live-stream the ceremony – facebook.com/motifri/videos – on Facebook. RI joins 18 other states, including Massachusetts and Connecticut, that have also legalized.

Sponsored in the Senate (S.24300Aaa) by Sen. Joshua Miller (D-28, Cranston and Providence) and in the House (H.7593Aaa) by Rep. Scott A. Slater (D-10, Providence), the new Cannabis Act is the culmination of a decade of effort to regulate and tax adult recreational cannabis usage similarly to alcohol. Both chambers passed textually identical versions late yesterday (Tue, May 24) afternoon by overwhelming votes, 32-6 in the Senate and 55-16 in the House, largely along party lines with Democrats supporting and Republicans opposing the bill, sending it to the governor for his signature. The approvals were widely expected after favorable committee reports last week (Wed, May 18): although the Senate took only a half-hour to debate and vote, the House engaged in a more contentious debate that consumed two hours before voting.

RI Senate passes Cannabis Act (H.2430) by vote of 32-6, May 24, 2022.
RI House passes Cannabis Act (H.7593) by vote of 55-16, May 24, 2022.

For adults at least age 21, possession of personal use quantities of cannabis was decriminalized by RI in 2013, but the new legislation expands that to decriminalize both sale and possession of up to one ounce, and up to 10 ounces for personal use may be kept at a primary residence. Small amounts up to three plants can be grown by those for whom possession is allowed.

A late amendment provides for automatic expungement of criminal convictions, changed from earlier versions of the bill that would have required individual petitions to the courts. (See “ExSPONGing Away Criminal Records: Fighting for automatic expungement in RI”, by Kristen Dansereau, Apr 6, 2022.) Convictions eligible for expungement include any prior civil violation, misdemeanor, or felony conviction for possession of cannabis that would be decriminalized by the new law. Automatic expungement by July 1, 2024, will occur without requiring affected individuals to file a request, pay a fee, or have a hearing, but those who choose not to wait may request an expedited process to have their records expunged sooner.

Municipalities not already hosting medical compassion centers may by referendum opt out of allowing sales. Municipalities currently hosting licensed cultivators or testing laboratories may opt out for the future, but existing facilities will be grandfathered in. A procedure is provided that allows communities to revisit their decision to opt out in later years, should they choose to do so. Municipalities may by local ordinance ban use of cannabis in public places.

In addition to the regular sales tax of 7%, new excise taxes will be imposed on cannabis sales of 10% to the state and 3% to the municipality in which the sale occurs. The new law eliminates fees for patients and caregivers in the RI medical cannabis program, including for identification cards and plant tags, effective Dec 1.

The general assembly said in a statement the law creates a new three-member Cannabis Control Commission whose members are appointed by the governor with input from the Speaker of the House and approval from the Senate, assisted by a new Cannabis Advisory Board. The existing administrative Office of Cannabis Regulation within the Department of Business Regulation will handle the transition to legal recreational use, including issuing hybrid licensing to existing compassion centers and cultivators.

RI Sen. Joshua Miller (D-28)

In the statement Miller, who chairs the Senate Health and Human Services Committee, said, “The reality is that prohibition does not stop cannabis use. Since Rhode Islanders can already access cannabis just across the state border or on the illicit market, we experience all the challenges without any of the safeguards or resources that our neighboring states have. With this bill, we are ending prohibition in a way that is safe, keeps revenue in Rhode Island, and is as fair and equitable as we can possibly make it. This bill has been years in the making, and is a collaborative effort to address concerns about protecting medical use, ensuring fair governance and recognizing that we cannot make this transition without taking action to make whole the communities and individuals who have been punished for decades under prohibition.”

RI Rep. Scott A. Slater (D-10)

In the statement Slater, who is first vice chair of the House Finance Committee, said, “Social equity has been a top concern for us throughout this whole process. Senator Miller and I represent some of the communities that have suffered disproportionate harm from prohibition for decades, resulting in generational poverty and mass incarceration. The starting line isn’t the same for people in poor, urban and minority communities, and they deserve support to ensure they get the full benefit of participating in legalization. I am grateful to my colleagues in the General Assembly for recognizing the importance of expungement of criminal records and equity in licensing, because they are absolutely critical to ending prohibition fairly.”

Rep. K. Joseph Shekarchi (D-23, Warwick), the speaker of the House, said in the statement, “I thank all the advocates, stakeholders, staff and especially Representative Scott Slater, who has worked tirelessly on this issue for the past decade. The bill represents a strong foundation from which to build the safe, equitable regulation of cannabis for adult use. We are proud that this legislation prioritizes the participation of people most impacted by the past enforcement of cannabis laws both through automatic expungement and the creation of a licensing structure based on social equity.”

Sen. Michael J. McCaffrey (D-29, Warwick), the majority leader, said in the statement, “This is a truly momentous day for Rhode Island. I’m deeply grateful to Senator Miller for his years of hard work and leadership on this issue, and I’m incredibly proud to have been part of reaching this point. I also want to thank President Ruggerio for his support throughout this process. Ending cannabis prohibition helps us right past wrongs while creating new opportunities for all Rhode Islanders. This is the right move, at the right time, for our state.”

Jared Moffat of Regulate RI and the Marijuana Policy Project

Jared Moffat, long active in the RI legalization effort since his days as a Brown University student and now state campaigns manager for the national Marijuana Policy Project, said in a press release, “We are grateful to Rep. Scott Slater and Sen. Josh Miller for their years of leadership on this issue. Rhode Islanders should be proud of their lawmakers for passing a legalization bill that features strong provisions to promote equity and social justice. We’re also thankful to Rep. Leonela Felix who advocated tirelessly for the inclusion of an automatic expungement provision that will clear tens of thousands of past cannabis possession convictions.”

In addition to Miller, the Senate bill was co-sponsored by Sens. McCaffrey, Goodwin, Ruggerio, Coyne, Pearson, Acosta, Kallman, Archambault, and Murray. In addition to Slater, the House bill was co-sponsored by Reps. Hull, Williams, Kazarian, Solomon, McNamara, O’Brien, Potter, Bennett, and Morales.

Motif has made available the portions of the full House and Senate sessions relevant to the Cannabis Act:

  video and audio audio only
Senate (34m) (38.5MB) (4.1MB)
House (2h02m) (138.5MB) (14.6MB)

 




Greater RI protections for wiretap warrants: No federal “good-faith” exception to exclusionary rule

RI Supreme and Superior Court Building, Providence.
(Photo: Kenneth C. Zirkel, via Wikimedia Commons CC-BY-SA 4.0)

The RI Supreme Court this morning (May 5) ruled unanimously, 5-0, in a consolidated case involving multiple criminal defendants (State v. Deric S. McGuire et al.) that a failure to follow strict state law requirements for wiretap warrants totally invalidates those warrants, justifying a suppressing of evidence for all of the fruits of the invalid warrants. While recognizing that federal jurisprudence might allow a “good-faith” exception to admit the evidence because none of the parties intended to break the law regarding wiretap warrants, the Court ruled the RI State Constitution provides greater protection against warrantless searches and seizures and therefore no “good-faith” exception applies.

The RI Supreme Court quotes its own prior ruling in Pimental v. Department of Transportation, 561 A.2d 1348, 1350 (R.I. 1989), that “[t]he [United States] Supreme Court… has recognized the right and power of state courts as final interpreters of state law ‘to impose higher standards on searches and seizures under state constitutions than required by the Federal Constitution.’” Pimental held that traffic stop roadblocks looking for drunk drivers were unconstitutional in RI, despite being allowed under federal law and used in other states.

The Court explained the background of McGuire: “These consolidated cases arose from a Rhode Island State Police investigation into alleged outlaw motorcycle gangs, which led to an indictment in November 2018 against forty-one defendants charging 424 criminal counts, including possession of and possession with intent to deliver controlled substances, conspiracy, and unlawful possession of firearms. As part of the investigation, from May 2017 through May 2018, an Assistant Attorney General presented applications for several orders authorizing the interception of wire, electronic, and oral communications and orders extending, amending, or terminating the wiretaps (the wiretap orders).”

The error arose because the RI Wiretap Act, §12-5.1-3, specifically requires that wiretap orders be issued by either the presiding justice of the Superor Court, Alice B. Gibney, or, if she is disqualified for any reason, by the senior associate justice, Robert D. Krause. When Gibney took medical leave, she designated Krause to act as presiding justice under §8-3-4. However, because Krause managed the court gun calendar, Gibney designated another associate justice, Melanie Wilk Thunberg, to handle wiretap orders. When Gibney returned from medical leave and resumed her duties, relieving Krause of his status as acting presiding justice, she left wiretap orders assigned to Thunberg who had been handling them. (The only other authority specifically restricted to the presiding justice is that of granting immunity from prosecution under §12-17-15.)

When criminal charges were filed, the numerous defendants moved to suppress evidence gained from the wiretaps, arguing the specific provisions of the Wiretap Act superseded the general provisions of statute elsewhere, making the warrants invalid because they were issued by Thunberg, who while an associate justice was neither the presiding justice nor the most senior associate justice, the only two authorized to issue wiretap warrants. The trial court agreed with the defendants and ordered the evidence flowing from the wiretaps to be excluded so it could not be used against them.

Justice Maureen McKenna Goldberg, writing for a unanimous Supreme Court affirming the decision of the Superior Court trial proceeding below, went out of her way to emphasize repeatedly that neither the Attorney General nor the Superior Court justices involved thought they were doing anything wrong: “…it is manifest on the record before us that all executive and judicial officers involved in this series of events acted in the best interest of the State of Rhode Island, and that Justice Thunberg was a neutral and detached judicial officer who is highly competent to perform such an endeavor. However, she simply lacked the statutory authority to receive the applications and issue the wiretap orders. Thus, we conclude that the wiretap orders were invalid, and, consequently, the interception of communications pursuant to those orders amounted to ‘unauthorized intrusions’ into these defendants’ private communications.”

Firstly, the Supreme Court held that the issuance of the wiretap warrants was clearly invalid, as the specific provisions of the Wiretap Act were violated.

Secondly, the Court held that suppression of the evidence was the correct remedy. The state argued that precedent had allowed evidence to be used despite technical defects in search warrants that incorrectly omitted mandatory language, but the Court held that to be a much less serious matter, citing a series of previous rulings going back to 1975 that held wiretap warrants to a higher standard than ordinary search warrants.

Thirdly, and most importantly as future precedent, the Court held that no “good-faith” exception applies to an invalid wiretap warrant as might be allowed under federal law: “Alternatively, the state asks this Court to adopt the good-faith exception to the exclusionary rule as provided for in United States v. Leon, 468 U.S. 897 (1984). In Leon, the United States Supreme Court created an exception to the exclusionary rule ‘when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.’… We are hard-pressed to conceive that a judicially-created exception to a judicially-created exclusionary rule, such as the Leon good-faith rule, is applicable to the strict statutory mandates under review in these cases.” In other words, the RI Supreme Court explicitly held that evidence that is the fruit of an invalid wiretap warrant is inadmissible at trial and must be excluded because of state law, even if it would be admissible under federal law, recognizing that Rhode Island citizens have greater constitutional protections against improper search and seizure.




My friend, killed by the government: Stop the carnage

A few months ago, a friend of mine was killed by government policy.

This may seem an extreme claim, but my friend was attending a house party, like those which happen all the time. Someone offered him cannabis, and he accepted. Laced with fentanyl, it killed him.

Fentanyl is a dangerous opioid and the main driver in a crisis of fatalities, but my friend was not a user of prescription pharmaceuticals such as oxycodone or street drugs such as heroin. He was just a person with no known addictions or history of substance abuse, socially using cannabis at a party.

It’s a mystery why anyone would lace cannabis with fentanyl. Since July 2021, Connecticut “received reports of overdose patients who have exhibited opioid overdose symptoms and required naloxone for revival. These patients denied any opioid use and claimed to have only smoked marijuana.” In November, Connecticut was able to obtain a sample of the cannabis used and confirmed the presence of fentanyl in laboratory tests. The party my friend attended was in Rhode Island, but the RI State Health Laboratory said that, as of March 28, they “have not identified any fentanyl laced marijuana in Rhode Island to date.” Yet it happened, and my friend is dead.

As recently as March 25, the Congressional Research Service issued an analysis explaining the status of cannabis under US federal law: “Schedule I substances are considered to have a ‘high potential for abuse’ with ‘no currently accepted medical use in treatment in the United States.’ The [Controlled Substances Act] prohibits the manufacture, distribution, dispensation, and possession of Schedule I substances except for federal government-approved research studies.” Science has learned a lot In the half-century since Congress put cannabis on the Schedule I list in 1970, but only Congress can fix this and there has been no political will to do so.

Almost seven years ago, I wrote (“Opinion: Will Rhode Island Surrender Yet Another Industry?”, by Michael Bilow, Jun 4, 2015), “Recreational use of marijuana, though illegal, is mainstream.” I cited the most recent data available as of 2011-2012 from the National Surveys on Drug Use and Health conducted by the federal government, reporting that in RI among 18-25 year-olds 30.16% had used cannabis and 40.49% had used tobacco within the past month. Looking at the most recent 2019-2020 data – samhsa.gov/data/report/2019-2020-nsduh-state-specific-tables (Table 90A) – the percentage in RI among 18-25 year-olds within the past month has increased to 36.26% for cannabis use and decreased to 22.14% for tobacco use; the national averages (Table 2A) are now 23.02% for cannabis use and 21.77% for tobacco use. As I wrote in 2015, “It is now beyond serious dispute that the ‘war on drugs,’ insofar as it targets marijuana, has been lost. No matter what anyone asserts about the negative effects on health or otherwise, in a democratic society making criminals of a third of the young adult population is an abuse of the police power of the state…”

This country experimented with alcohol prohibition from 1920 to 1933 with consequences now universally recognized as disastrous. Not only was prohibition widely flouted, directly causing a boom in organized crime to supply the strong demand on the black market, but quality control was impossible as illegal makers used harmful ingredients and unsanitary equipment to satisfy the market. In an estimated 20,000 to 50,000 people, permanent nerve damage was caused. It became so common that “jake leg” disease, the partial or complete loss of use of hands and feet caused by toxins in Jamaican ginger, was the subject of dozens of blues songs and an instantly recognizable cultural phenomenon in the early 1930s.

Today, any eligible adult can buy alcoholic beverages from a reputable liquor store, from a reputable maker, meeting standards of quality and purity that are enforced by government regulation and inspection. Alcohol still certainly causes social problems, but no one has been poisoned by anything like “jake leg” disease in almost a century, and that epidemic and its tens of thousands of victims have been completely forgotten except by blues music historians.

Tobacco is enormously harmful but, as noted above, between 2012 and 2020 use among those between 18 and 25 decreased by half for a completely legal product. Does anyone seriously believe that prohibition would have helped?

The reason my friend who was killed by unknowingly and unintentionally ingesting fentanyl could not get quality-controlled cannabis was because there are still draconian government policies preventing it. Although more and more states have legalized recreational use of cannabis, the growers and sellers are banned by federal regulation from using the banking system, forced to operate like the organized crime syndicates of alcohol prohibition despite their desire to become legitimate businesses. Further, as states see cannabis as a cash cow target for disproportionate and excessive taxes, they encourage the survival of the established black market. As Pat Oglesby, former chief tax counsel to the US Senate Finance Committee said in a forum at Brown University that I covered in 2014, cannabis is an ordinary agricultural product, “kind of like oregano,” whose price results from artificial scarcity attributed solely to its illegality.

RI may finally this year legalize recreational use of cannabis, creating a white market for growers and sellers. While this is a step forward, progress is hardly guaranteed. The federal legal restrictions will remain for the foreseeable future. If the state imposes taxes that are too high instead of reasonable taxes comparable to alcohol, customers will be encouraged to stick with the black market. If licenses for sellers are plagued by cronyism, not exactly unprecedented in RI, that will also harm fair operation of the market, possibly even giving sellers monopoly power that disadvantages growers and buyers. The devil is in the details.

My friend was someone I knew primarily from literary circles, and I would often see him at plays and readings, especially in the gothic horror community. While it often directly addresses the subject of death, “The gothic is an entertainment, walking on a tightrope over a dark view of life. I call this ‘the smile behind the skull,’” as poet Brett Rutherford said years ago. Real death – especially sudden, unexpected, and senseless – is simply a tragedy.

No matter how federal and state law changes, my friend is still dead. Unless cannabis is allowed to become a legitimate business as reputable and responsible as the trade in alcohol, a lot of unfortunate recreational cannabis users may join him. He doesn’t need the company.

SIDEBAR

Motif is committed to community harm reduction efforts and will host a table distributing, for free, naloxone (Narcan) overdose first-aid treatment and test kits that can detect fentanyl at our 2022 Tattoo Awards Ceremony beginning 6pm on April 12 at the Narragansett Brewery, 271 Tockwotton St, PVD. These materials will be provided by the Hope Recovery CORE (Community Outreach Response Efforts) Team, part of the Parent’s Support Network of RI – psnri.org/our-services/peer-recovery-outreach.html – funded by the Rhode Island Department of Health. The CORE Team also provides support and referrals to inpatient treatment, medication assisted treatment, recovery housing, self-help-based support, Peer Recovery Support, HIV/HCV testing, and basic needs assistance.




Additional COVID-19 vaccine booster dose: For everyone age 50+ and immunocompromised age 12+

Today, the US Food and Drug Administration (FDA) authorized and the US Centers for Disease Control and Prevention (CDC) recommended a second booster dose of mRNA COVID-19 vaccine (that is, either Pfizer-BioNTech or Moderna) for everyone age 50 and older at least four months after their prior booster dose, with a strong recommendation for everyone age 65 or older and for those age 50 and older with underlying medical conditions.

For those who are immunocompromised, an additional Pfizer-BioNTech vaccine booster dose is authorized for anyone age 12 and older and an additional Moderna vaccine booster dose is authorized for anyone age 18 and older, at least four months after their prior booster dose of any authorized vaccine.

At the option of the recipient, booster doses can be of a different brand as prior doses, for example following a Pfizer-BioNTech dose with a Moderna dose.

For persons who are younger than age 50 and are not immunocompromised, the recommendation of a single booster dose after a two-dose primary sequence remains unchanged. According to the FDA, a first booster dose provides significant and substantial protection against hospitalization and death, including against circulating variants such as Delta and Omicron, for most people, but data from Israel shows that a second booster is of value for those whose immune systems are less robust because of age or other reasons.

Separately, regardless of age every adult who received both a primary single dose and booster dose of Johnson and Johnson (Janssen) vaccine at least four months ago may now receive a second booster dose using an mRNA (Pfizer-BioNTech or Moderna) vaccine.

“Current evidence suggests some waning of protection over time against serious outcomes from COVID-19 in older and immunocompromised individuals. Based on an analysis of emerging data, a second booster dose of either the Pfizer-BioNTech or Moderna COVID-19 vaccine could help increase protection levels for these higher-risk individuals,” said Peter Marks, MD, PhD, director of the FDA’s Center for Biologics Evaluation and Research. “Additionally, the data show that an initial booster dose is critical in helping to protect all adults from the potentially severe outcomes of COVID-19. So, those who have not received their initial booster dose are strongly encouraged to do so.”

Marks of the FDA held a media briefing available on YouTube, and among other issues said that in coming months there may be a need for variant-specific vaccines but this is not yet known.

CDC Director Rochelle P. Walensky, MD, MPH, said, “Today, CDC expanded eligibility for an additional booster dose for certain individuals who may be at higher risk of severe outcomes from COVID-19. Boosters are safe, and people over the age of 50 can now get an additional booster four months after their prior dose to increase their protection further. This is especially important for those 65 and older and those 50 and older with underlying medical conditions that increase their risk for severe disease from COVID-19 as they are the most likely to benefit from receiving an additional booster dose at this time. CDC, in collaboration with FDA and our public health partners, will continue to evaluate the need for additional booster doses for all Americans.”

In response to an inquiry from Motif, the RI Department of Health (RIDOH) restated the new federal recommendation and said, “If you have questions about whether a second booster dose is right for you, talk to your healthcare provider.” RIDOH confirmed that the additional booster dose, which is identically formulated to primary doses, would be available from any state-run facility or private pharmacy from which vaccine is ordinarily available.




Ukraine vigil Sat, Mar 26, 4pm, RI State House: Interfaith humanitarian relief effort

“Rhode Island Stand with Ukraine” poster for vigil Sat, Mar 26, 2022, 4pm, at the State House. The QR code is a link to donate for humanitarian relief via UNICEF (United Nations Children’s Fund) USA.

An umbrella group calling itself “Rhode Islanders for Ukraine” announced a vigil in support of the Eastern European nation, now fighting against an invasion by Russia, to be held Saturday, March 26, at 4pm on the south side of the RI State House, “to pray and raise financial support for humanitarian relief efforts in Ukraine. This is a bipartisan effort with neighbors representing many of the world’s religions coming together in a moment of unity to encourage not only peace for Ukraine but also assist in supporting the tremendous number of refugees in their plight.”

The poster circulated by the group includes a QR code to a donation link for humanitarian relief via UNICEF (United Nations Children’s Fund) USA: unicefusa.org/stories/unicef-children-crossfire-ukraine-crisis/39542?form=FUNCZQQBUQH&fundraiser=NYYESSQW

The UN High Commissioner for Refugees reported 3.7 million people forced by the war to flee to neighboring countries, primarily Poland and Romania, as of Mar 23 daily data. The UN International Office for Migration reported 6.5 million people internally displaced as of Mar 21, forced by the war to abandon their homes seeking refuge elsewhere within the country. Ukraine has a total population of 42 million, not counting 2 million in the Crimea and Sevastopol regions invaded and annexed by Russia in 2014.

This vigil is separate from, and could be interpreted as opposing, the weekly demonstration held on the opposite side of the State House at the same time that advocates for a strictly pacifist view, including dismantling NATO and stopping military aid to Ukraine.




Saturday 3am-7pm rain then possible snow: Little accumulation

At Providence, rain Saturday with temperatures in the 40s until 4pm, with decreasing temperatures possibly causing a change to snow for a short time before ending 7pm. Flash freezing as temperatures drop to the low 20s overnight could cause slippery road conditions from wet surfaces.

Median accumulation forecast is a fraction of an inch, with probabilities 68% for at least 0.1 in, 32% for 1 in, 12% for 2 in, and near 0% for 4 in.




Retail Gasoline Price Increases: The crude truth

As retail gasoline prices rise above $4.00 per gallon, a lot of misinformation and even disinformation is circulating purporting to explain this. Let’s try to get to the real reasons.

Gasoline edging toward $4.00/gallon on Mar 8, 2022, in Seekonk, MA.
(Photo: MIchael Bilow)

The historical peak for retail gasoline was in 2008 when the consumer price reached what would be $5.20 per gallon today, adjusted for inflation, and we are still far from that. According to the widely cited AAA tracker, as of Mar 9, the average retail price in RI is $4.287; it was $3.624 a week ago, $3.468 a month ago and $2.706 a year ago. Why?

The gasoline price at the pump is 15% taxes, 16% distribution and marketing, 14% refining, and 56% crude oil, according to the US Energy Information Administration. (Diesel is about the same, although refining is slightly more expensive.) Crude oil, of course, is the big variable.

Crude oil is a commodity traded on the New York Mercantile Exchange (NYMEX) where its price is determined by open and public auction between buyers and sellers. Supply and demand causes the price to change: when there is an imbalance in favor of supply the price goes down; when there is an imbalance in favor of demand the price goes up.

Cost factors of retail motor fuel.
(Source: https://www.eia.gov/petroleum/gasdiesel/ )

In the market there are two main types of crude oil: West Texas Intermediate (WTI) and Brent, both of which are similar and easy to refine into useful consumer products such as gasoline. The primary difference is that WTI is the benchmark in the US and Brent is the benchmark everywhere else. Brent is the pricing benchmark for the Organization of Petroleum Exporting Countries (OPEC), an international cartel that tries (usually unsuccessfully) to manipulate supply. Sometimes one is cheaper than the other, but generally they track closely together.

Most of the trading action is in “futures,” which are contracts for the delivery of product some number of months in advance. Producers of crude oil can offer a contract now and buyers will pay cash to obtain the right to buy at a specific time and specific “strike” price. The cash can then be used to fund the production process, including exploring, drilling, mining, and transporting. Buyers are guaranteed future supply at a fixed price: if the market price of crude oil rises above the strike price specified in the contract, they can sell the contract itself at a profit.

What is essential to understand is that the price rises and falls based on the consensus expectations of the mass of buyers and sellers participating in the market. Trading futures contracts reflects not supply and demand in buying and selling of actual oil, but predictions about what the supply and demand will be in the future. Anyone can look up the current price of oil futures on the NYMEX. For example, at the moment, the contract for delivery of one barrel in April is $124.66 (-10.06% today), in May is $120.66 (-11.59%), in June is $116.50 (-11.96%), and so on. This means the instantaneous market consensus is (more participants believe) that the crude oil price will fall rather than rise.

Obviously, the recent invasion of Ukraine by Russia has spooked the oil market, but the actual cost of energy is not yet reflected in retail prices that are instead being driven by worries about the future.

The recent gasoline price spike almost entirely reflects market psychology and worries about the future. Existing markets have figured in the consolidated expectations of many buyers and sellers as to how difficult it will be to obtain reliable supply in the coming weeks and months, and distilled that down to price changes. Energy is inherently a worldwide concern and is fungible: Although the US has robust sources, shortages in Europe or Asia will drive up prices everywhere. No one can control the market, neither big oil companies nor governments.

Now that you know what really determines the price of crude oil, the major variable factor influencing the price of retail gasoline, what other oil-related ideas are true or false?

The US public assigns blame by preconceived assumptions, not facts

YouGov: Who would you blame most for rising gas prices?
(Source: https://today.yougov.com/topics/science/survey-results/daily/2022/03/09/fbad0/3 )

A YouGov survey asking “Who would you blame most for rising gas prices?” found that the public overall was evenly split, Biden 36% and Putin 35%. But there was enormous partisan polarization:

Party Biden Putin
Democrats 10% 59%
Republicans 70% 16%
Independents 40% 30%

The US is the world’s largest oil producer

About 15% of the world oil supply comes from the US, with Russia second at 13% and Saudi Arabia third at 12%. After that, Iraq is fourth at 6% and Canada fifth at 5%.

The US imports little crude oil from the Middle East and almost none from Russia

When the US imports crude oil, 61% is from Canada and 11% is from Mexico. Only 8% is from Saudi Arabia and 3% is from Iraq. Rounding out the top five sources of crude oil imports to the US, Colombia (in South America) accounts for 4%.

The US is a net exporter of oil and has been since 2020

US becomes a net exporter of oil.
(Source: https://www.eia.gov/energyexplained/oil-and-petroleum-products/imports-and-exports.php )

Although the US imports more crude oil than it exports, so much of it is refined for export that overall the US exports more oil than it imports. In other words, the rest of the world is paying the US to employ its superior refining technology.

Different sources have different costs

Oil comes from a lot of different sources in different places. Some is harder to extract and some is easier, so the costs vary among these sources. As the market price falls, more expensive sources become unprofitable and are taken off-line; as the market price rises, more expensive sources become profitable and are brought on-line. The process of physically enabling and disabling sources of supply takes months, so it always lags behind demand.

There are also costs that vary geographically: labor is paid more in developed countries such as the US than in developing countries, so often leases remain unused for production simply because it is cheaper to produce oil outside the US. This is why, with crude oil prices at historical lows until recently, US oil production decreased.

Consumer behavior and demand is changed by price

When gasoline prices spiked in 2008, so many commuters in RI decided to switch to RIPTA instead of private cars that buses had to skip picking up passengers because they were already full. Unfortunately, much of RIPTA funding comes from the gasoline tax, so a decrease in demand for gasoline reduces funding for public transit.

Federal government policies have little effect on the price of energy

Criticism of the Biden administration for canceling the Keystone XL pipeline project, regardless of one’s view on whether the decision was correct, ignores the fact that no fuel would have passed through it until 2030 at the earliest, so far into the future that it has no current effect on prices or supply.

Similarly, controversy about shutting down the Canadian Line 5 pipeline under the Great Lakes has misrepresented it as a US federal government proposal somehow connected with climate change, when in fact it has been the State of Michigan concerned that the pipeline, in operation since 1953, poses a danger of leakage and widespread contamination of fresh water supplies.

Biden administration leasing policies are constrained by court orders

Ironically, a legal dispute over climate change has tied the hands of the Biden administration from issuing oil and gas leases. Estimating the “social cost” of carbon dioxide greenhouse gas emissions, the Trump administration set a valuation of $7 per ton on the grounds that effects outside the US did not have to be counted, while the Biden administration set $51 per ton after taking into account worldwide effects. Eleven states with Republican attorneys general sued to overturn the change, and a federal court blocked it. The practical result was to leave the federal government with no legally valid number, and therefore no way to evaluate applications, freezing the lease review process.

Europe has a huge problem because of dependence on Russian energy

Russia crude oil exports by destination.
(Source: https://www.eia.gov/todayinenergy/detail.php?id=22392 )

While the US has the luxury of banning Russian oil imports as Biden did yesterday, Europe is far worse off depending on Russia for 40% of its natural gas and 25% of its oil. All European countries are not in the same position either: Russia supplies Poland with 67% of its natural gas but Ireland with only 5%. Experts estimate, that Europe could replace 85%–90% of Russian natural gas with some combination of imported liquified natural gas (LNG) shipped by boat, mostly from the US, and expansion of renewable sources. No one knows what the economic and political effects would be of a large cutoff that could result in sharp inflationary price increases and even rationing. Retail gasoline in most of Europe already costs more than the equivalent of $8.33 per gallon.

Russia faces economic devastation if Europe drastically cuts imports

Russia oil exports by destination.
(Source: https://www.eia.gov/todayinenergy/detail.php?id=33732 )

Russia gets about two-thirds of its export revenues from energy, so any sizable reduction would result in severe damage to its economy, plunging the nation into real poverty well beyond what any sanctions could do by focusing on currency exchange and the banking system. The European Union’s stated plan to try to eliminate two-thirds of its energy imports from Russia by the end of this year is uncharted territory.