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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 California banned large magazines in 2000 but repealed its grandfather clause in 2016, leading to a flurry of litigation (Duncan v. Bonta) now pending before the US Supreme Court; an internal conference May 26 was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.”




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.




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.




RI COVID-19 Test Standing Order: Allows direct billing insurance at pharmacies

Under a new standing order, every person in RI with either Medicaid or private health insurance should be able to pick up COVID-19 rapid antigen test (RAT) kits from any pharmacy without having to pay up-front.

Despite a federal government mandate that health insurers must cover up to eight kits per month for every covered individual, carriers instructed pharmacies to require up-front payment for which customers could seek reimbursement unless they had a prescription. This policy applied even to very low-income insured persons, including those on Medicaid, for whom the cash requirement and paperwork hassle are prohibitive.

Standing Order for All Rhode Island Pharmacies Over-the-Counter (OTC) Home COVID-19 Tests All Types of Home Kits

As we reported previously (“News Analysis – Failure on COVID-19 rapid testing availability: Insurers game the system”, by Michael Bilow, Feb 6, 2022), to solve this problem the federal Centers for Medicare and Medicaid Services (CMS) “recommended that states issue a standing order for pharmacies for tests, including over-the-counter tests, as opposed to requiring a prescription per person to alleviate beneficiary and provider burden.”

The RI Department of Health (RIDOH) in response to repeated inquiries from Motif said that such a standing order was under consideration, but finally advised that it had been issued. (Download it from motifri.com/wp-content/uploads/2022/03/RI-COVID-home-test-standing-order-f.pdf.) The order states: “Suzanne Bornschein, MD, being an actively licensed Rhode Island physician, shall serve as the prescribing physician for this standing order… The general public may visit a participating pharmacy on a walk-in basis to receive any type of OTC COVID-19 test kit, up to 8 tests per individual per month.” The protocol per the order is: “Individuals shall provide their insurance information and required patient demographics to the pharmacist/pharmacy staff and request that the test be billed to their health insurance company. The pharmacist/pharmacy shall enter Dr. Suzanne Bornschein M.D. as the prescribing provider when submitting the claim to the third-party insurance carrier.”

Families on the same insurance plan are eligible for RAT kits on an individual basis, so a family of four would be eligible for eight each, or 32 tests, per month.

Motif has received reports that many pharmacies are out of stock on RAT kits, but has been unable to determine the scope of the problem.

Medicare (as opposed to Medicaid) patients are not covered for RAT kits but are eligible for PCR tests.

In addition, every residential address in the US can order four more RAT kits for free, even if they have previously ordered an initial four tests, through an official government web page: covidtests.gov (which currently redirects to a site operated by the US Postal Service special.usps.com/testkits). Persons need enter only their name and shipping address to place a free order, and optionally can enter an e-mail address to be notified about order progress.




Neo-Nazi Protesters at Red Ink: Disrupt community library reading

Neo-Nazi protesters waving flags emblazoned with a swastika, “SS” runes, and a “Totenkopf” (death’s head) disrupted an event at Red Ink Community Library on Cypress Street near Billy Taylor Park in Providence. The reading at 6pm on Monday, Feb 21, was intended to commemorate the 174th anniversary of The Communist Manifesto as part of international Red Books Day. 

“The Red Ink Community Library is an independent… lending library and reading room, and organizing space in the Mount Hope neighborhood of Providence,” David Raileanu, director of Red Ink, told Motif. “We had about six or seven people indoors plus another 10 or so who were watching the live stream” on Facebook, he said.

Neo-Nazi flag displayed outside Red Ink Community Library, Feb 21, 2022. (Source: Still frame extracted from video on Twitter)

“It was around 6:40pm when there was a loud banging on the windows as well as shouting, some yelling coming from the sidewalk in the street. A couple of our members went outside to see what was going on and it was very apparent that a group of people who were wearing insignia associated with fascist and nazi groups were attempting to disrupt and ultimately disband our meeting,” Raileanu said. “It was very, very disruptive. So the people who went outside – I personally didn’t go outside and see what was happening – but the people who did told me that there were at least 20 or 30 people and as many as possibly 50 people outside. And so, being so significantly outnumbered, it was safer for all of us to stay indoors and tell them to go home and leave us alone. They did not do that. Apparently some people in the neighborhood called the police and after seven or eight minutes, five or six squad cars showed up and the disruptors outside started to disband.” A video clip of the angry demonstration was shared widely on social media

Asked about the reaction to the protest, Raileanu said, “I was inside. My perception was that it was terrifying, that there was a palpable sense of fear among the group, and yet everybody remained calm and resilient and maintained an admirable sense of poise in the face of what appeared to be imminent danger.”

Raileanu said no one in his organization called the police. On Twitter, the Red Ink account wrote, “The Nazis continued to put on their show until Providence Police asked them to leave. While we didn’t ask for help from the police, it was only the threat of state violence that ended this disruption.”

“They were shouting for probably 10 minutes, I think, and then it was another 10 minutes or so [after the police began to arrive], so altogether the incident lasted less than 30 minutes. We were able to regroup as a meeting around 7:15pm,” Raileanu said. “The police came back and spoke to us. They said that they saw the people who came to disrupt the meeting get into their cars and go home, but that they would leave a squad car here just to make sure that we were able to finish.” Raileanu said he was not aware of any personal injury or property damage.

According to the Providence Police report, at about 6:40pm, “District 8 and 9 received information and were advised a group of Neo Nazis were proceeding to the Red Ink Community Library… to interrupt the individuals who were inside attending a reading… Upon arrival we observed approximately 15-20 subjects (from the Neo Nazi group) standing outside and striking the front window of the Red Ink Community Library with their hands. As soon as all of the District 8 and 9 cars arrived on scene with the overhead emergency lights on, the neo-Nazi crowd began to disperse… Police did not observe any damage to the building.” The report confirms that a police car and an officer remained on the scene until about 8:15pm without further incident. The report also specifies that the police body-worn cameras were activated, but the footage has yet to be made public. 

No arrests or charges were reported. If the protesters stayed on the sidewalk, didn’t obstruct the storefront and committed no act of vandalism, then their actions may have been perfectly legal, regardless of the neo-Nazi banners and insignia, and as a result there was little the police could do to stop them beyond simply maintaining a presence.

Based on chants that included “131,” it is believed that the neo-Nazi protesters were affiliated with “NSC-131,” a Boston-based, far-right fascist group: “NSC” stands for “National Socialist Club” (“National Socialist” is the root of the term “Nazi”) and “131” is intended to represent the letters of the alphabet “ACA” that stands for “Anti-Communist Action.” The group claims to be active in the six New England states, including RI, and on fringe social media they frequently post video recordings of their protests. The FBI, with primary responsibility for monitoring organizations like NSC-131, declined comment to Motif.

“We had received a notice from Lucy Parsons Center and Democracy Center in Boston, back in October, that these kinds of groups did exist, and that we should be on the lookout for them,” said Raileanu. NSC-131 orchestrated a similar demonstration at the Lucy Parsons Center and has been identified as the group responsible for hanging white supremacist banners from highway bridges.

According to Raileanu, “Nothing has ever happened to Red Ink in the past. This place has been a joyous place, a place of celebration of socialist values and a place where we have found community and promoted knowledge and education. There have been no incidents up to this point.”

“We intend to be a celebration of socialist values: community, equality, knowledge and education,” Raileanu said. “If we are on the opposite side of fascists and nazis, we are on the right side.”

As a result of this incident, Red Ink has announced a virtual “community safety forum” at 11am, Saturday, Feb 26, on Zoom.

Additional reporting by Mike Ryan




News Analysis – Failure on COVID-19 rapid testing availability: Insurers game the system

A federal mandate issued by the Centers for Medicare and Medicaid Services (CMS) requires health insurers to either directly cover or indirectly reimburse each insured individual for up to eight at-home over-the-counter COVID-19 rapid antigen test (RAT) kits per month, up to $12 per test. Families on the same insurance plan are eligible for RAT kits on an individual basis, so a family of four would be eligible for eight each, or 32 tests, per month. (See “Free rapid COVID-19 tests available: US government web page, pharmacies”, by Michael Bilow, Jan 18, 2022.)

On its web page, CMS poses the question “Will I have to pay for my test up front?” and then answers it: “The Biden-Harris Administration is strongly incentivizing health plans and insurers to set up a network of convenient locations across the country such as pharmacies or retailers where people with private health coverage will be able to order online or walk in and pick up at-home over-the-counter COVID-19 tests for free, rather than going through the process of having to submit claims for reimbursement.”

In RI, at least, the program is completely failing to work as intended.

Our visits to major chain pharmacies, including CVS and Walgreens, confirmed according to the pharmacists on duty that RAT kits must be paid for up-front by the customer, unless filling a prescription from a health care provider, who can then seek reimbursement from their insurer – but a critical public policy goal of the mandate is to get kits into the hands of as many people as possible with the fewest obstacles. (Both CVS and Walgreens did not respond to our inquiries.) Especially in the case of patients insured by Medicaid, who are by definition poor, requiring up-front payment and then waiting for reimbursement is effectively prohibiting access to rapid tests.

Motif asked CMS about this situation, and we received a reply on Jan 21 from their spokesperson saying “As outlined in our State Health Official letter released on August 31, 2021, the American Rescue Plan Act of 2021 requires states to cover COVID-19 tests, including at home tests. As part of their utilization management, states are permitted to require a prescription for at home COVID-19 tests. Utilization management techniques, including possible prescription conditions, should not establish arbitrary barriers to accessing COVID-19 testing coverage, but could facilitate linking the reimbursement of a covered test to an eligible Medicaid or CHIP beneficiary.”

Acknowledging the obvious difference between COVID-19 test kits and ordinary drug prescriptions subject to “utilization management,” the spokesperson stated, “CMS has also recommended that states issue a standing order for pharmacies for tests, including over-the-counter tests, as opposed to requiring a prescription per person to alleviate beneficiary and provider burden. CMS continues to work closely with states as they operationalize coverage requirements and will provide any needed technical assistance.”

In other words, insurers including Medicaid are allowed to impose massive barriers to access, totally circumventing the public health goals of the CMS coverage mandate. As a practical matter, how many patients will go through the hassle of submitting in some cases multiple-page forms and supporting documentation to seek reimbursement of a $12 item? Even worse, although CMS prohibits Medicaid from assessing co-pay or passing other costs onto poor patients, those often most in need of access to rapid testing are precisely those most unable to pay up-front.

Has RI followed the CMS recommendation to issue a standing order that would function as a general prescription, allowing patients to charge RAT kits directly to insurers when picking them up from pharmacies instead of having to pay up-front and seek reimbursement? Motif asked that question of the RI Department of Health, and spokesman Joseph Wendelken replied on Jan 24, “We don’t have a standing order in place right now, but this is something we are actively evaluating.” That was two weeks ago.

What is RI waiting for?




Nicolella, Gamache named youth poetry ambassador, deputy: Annual appointments resume in 2022 after pandemic hiatus

Lourdes Nicolella of the Moses Brown School, 2022 youth poetry ambassador.
(Photo: RI Center for the Book)

Lourdes Nicolella of the Moses Brown School has been selected as youth poetry ambassador and Adi Gamache of the Met School has been selected as deputy youth poetry ambassador for 2022 by Poet Laureate Tina Cane, the RI Center for the Book announced in a statement. Adam Fontaine of Smithfield High School and Cyprus Weaver of Westerly High School received honorable mentions.

“This initiative is designed to bring more poetry directly to our state’s youth and to inspire young people through example. Just as the state poet laureate position symbolically affirms Rhode Island’s support of poetry, the youth poetry ambassador is meant to validate and support the creative potential of our young people,” said center director Kate Lentz in a statement.

The deputy collaborates with the ambassador and performs any duties in her stead should she be unavailable.

Nicolella is a senior at the Moses Brown School where she serves as the editor-in-chief of the literary magazine, Omnia. Her goal as ambassador is to “create an inclusive youth literary community within RI, where young people of all different backgrounds are welcomed and encouraged to use their minds, hearts, and voices as a force for social justice.”

Adi Gamache of the Met School, 2022 deputy youth poetry ambassador.
(Photo: RI Center for the Book)

Gamache said, “Being named the deputy youth poetry ambassador is an incredible opportunity which I will try my best to live up to. To be able to meet and learn and share one’s art with others is a gift few get. More than anything, what I want to do with my poetry is change – if only for a second – the way someone views the world. Perhaps that is how the world itself is changed – with dominoes of repeated hope.”

A launch and reading celebration will take place at the State House Library in late February. Nicolella and Gamache will participate in poetry readings with other youths at additional library events to be announced.

Nicolella will receive a $250 cash prize and an opportunity to record a reading for Cane’s distance reading series “Poetry Is Bread.” Gamache will receive a $100 cash prize. Both will have the opportunity for their poetry to be featured on RIPTA buses as part of the “Poetry in Motion” series.

The 2022 appointments will be the fourth annual (except for a two-year term during the pandemic), following previous ambassador Moira Flath and deputy ambassador Kiani Sincere-Pope (2018), ambassador Catherine Sawoski and deputy ambassador Tyler Cordeiro (2019), and ambassador Halima Ibrahim and deputy ambassador Eugenie Rose Belony (2020/2021).