Mediaboss Marketing

2020 saw the courts continuing to play an important role in health policy with several notable lawsuits related to the Affordable Care Act (ACA). Several other Trump administration policies were challenged, including Medicare payment policies, price transparency, how the Medicaid program can change and whether Medicaid beneficiaries can sue over curtailed benefits, and immigration changes affecting access to programs like Medicaid. In 2021, the courts will continue to play an important role.

Texas v. United States.The U.S. Supreme Court held oral arguments concerning this most consequential challenge to the ACA on Nov. 20, 2020. The courts decision is expected in the spring. In this case, a group of Republican-controlled states and two Texas residents argue that the entire ACA became unconstitutional when Congress eliminated the penalty for individuals who fail to obtain health insurance. In Oct. 2020, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling stating the individual mandate was unconstitutional because it can no longer be justified as a tax since Congress set the penalty at 0. However, the panel also remanded the case to the lower court to determine what portions of the ACA are or are not severable from the individual mandate.

Another 17 states, led by California, were permitted by the trial court to intervene in the case and defend the ACA(the state intervener-defendants). Subsequently, the 5thCircuit allowed four more states to intervene in the case on appeal, bringing the total number of states defending the ACA in the case to 21. This coalition of Democratic attorneys general asked the U.S. Supreme Court to take up the case and not wait for the Texas court to rule on whether some or all of the ACA provisions are so intertwined with the individual mandate that they, too, must be deemed unconstitutional. The court agreed to do so.

Risk corridors.On April 27, 2020, the Supreme Court ruled in favor, 8-1, of commercial health insurers arguing that they are owed $12 billion under the ACAs risk corridor program. The risk corridor program was designed to compensate insurers who lost money in the early years of the exchanges, but congressional Republicans blocked CMS from making most of the promised payments.

Association health plans.One lawsuit challenged the Trump administrations expansion of association health plans (AHP) through a Department of Labor rule that sought to make it easier for small employers to band together and offer plans that do not have to comply with ACA consumer protections. A panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in November 2019.

On July 22, 2020, two employers brought parallel litigation in Texas, asking for a declaratory judgment that their health coverage arrangement is a single-employer self-insured group health plan (and thus exempt from most ACA rules). The employers had requested an advisory opinion from the Department of Labor, which concluded that the arrangement did not qualify as a single-employer group health plan. Briefing was completed in late April of 2020.

On Aug. 3, 2020, the District Court for the Southern District of New York gave its opinion in favor of New York State, ruling that the Department of Labor too broadly defined the term healthcare worker, and exceeded its authority as a result. The Court ruled that the Labor Departments definition was not in line with what Congress intended in enacting the Families First Coronavirus Response Act (FFCRA) and, as a result, could lead to non-clinical employees or medical practice affiliates being excluded from the FFCRA protections.

In oral arguments on the appeal held Nov. 14, 2020, the Court of Appeals for the District of Columbia Circuit was interested in narrowing the ruling, establishing whether the Department of Labors (DOL) new definition was reasonable. On Jan. 28, 2021 the Department of Justice (DOJ) requested a 60-day abeyance to give time for the Biden Administration to review the issues in the case and determine how to proceed.

Short-term plans.Similar to the association health plan case, this case involved the Trump administrations expansion of short-term, limited-duration plans, which also need not comply with ACA protections.

On July 22, 2020, a divided panel of the DC Circuit upheld the short-term plan rule in July 2020, concluding that the governments interpretation was entitled to deference and was neither inconsistent with nor impermissible under the ACA or HIPAA. The lead plaintiff, the Association for Community Affiliated Plans, suggested that it would ask for en banc review by a full panel of judges on the DC Circuit.

Cost-sharing reductions (CSR).Litigation occurred over the ACAs cost-sharing reduction program, which was intended to compensate insurers for setting low deductibles and copayments on the exchanges. In 2017, the Trump administration decided to stop making the CSR payments, prompting numerous lawsuits from insurers. The insurers have won various lower-court rulings, and a consolidated group of the lawsuits was on appeal at the U.S. Court of Appeals for the Federal Circuit. Oral arguments were held Jan. 9, 2020

The CSR litigation raised legal issues similar to those posed by the risk corridor case at the Supreme Court because both involve government payments to insurance companies that were intended by the drafters of the ACA but subsequently revoked.

On Aug. 17, 2020, a three-judge panel of the Court of Appeals for the Federal Circuit issued two decisions for Sanford Health Plan v. United States and Community Health Choice v. United States. The Court concluded that under Section 1402 of the ACA, insurers are entitled to unpaid cost-sharing reductions (CSRs).

The Federal Circuit agreed with the lower courts that Section 1402 imposes an unambiguous obligation on the federal government to make CSR payments to insurers and that this obligation is enforceable for damages. The three-judge panel limited the amount of unpaid CSRs that insurers can recover based on premium loading.

Contraceptive mandate.On July 22, 2020, the U.S. Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania, upholding the Trump Administrations rules that allow religious and moral exemptions to the ACAs contraceptive mandate. The Court vacated the prior nationwide injunction by a federal judge in Pennsylvania and remanded the case to the lower courts. Directly after that, the Court separately remanded an appeal of a similar injunction by a California federal judge from the Ninth Circuit Court of Appeals. Although the Trump administration, Little Sisters of the Poor, and the March for Life Education and Defense Fund had separately appealed the Ninth Circuit decision before, the Court had not taken action on those appeals while Little Sisters was pending and quickly remanded those challenges.

Nondiscrimination provisions.The Supreme Court heard Bostock v. Clayton Country, Georgia, a lawsuit over the Trump administrations efforts to weaken some of the ACAs nondiscrimination provisions, codified in Section 1557 of the law. HHS was finalizing regulatory changes expected to roll back Obama-era protections for groups such as transgender people, gay and lesbian people, and people who have terminated a pregnancy. The final rule led to a legal challenge.

On July 22, 2020, the Trump administration issued its new final rule in June 2020 to implement Section 1557. There is a new round of litigation over the final rule on Section 1557. There were at least five lawsuits challenging the rule, which include coalitions of plaintiffs arguing that the rule should be invalidated. Each lawsuit asks the court to vacate the Trump administrations rule in its entirety and prevent HHS from implementing or enforcing its provisions. They argued that the 2020 rule violates the Administrative Procedure Act (APA) as arbitrary and capricious and contrary to law. They also argued that the rule exceeds HHSs statutory authority and violates the Fifth Amendment.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County, and found that discrimination based on gender encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Trump administration from implementing parts of the final rule.

A New York court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination. After the plaintiffs requested clarification of the preliminary injunction order, the court directed the plaintiffs to submit a list of provisions of the 2020 rule, beyond the definition of gender discrimination, that can be kept despite the Supreme Courts Bostock decision for the courts consideration.

The D.C. court blocked the implementation of provisions excluding gender stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination. Several other legal challenges are pending.

Take care clause.This broad-based lawsuit, Columbus et al. v. Trump, was brought by a group of cities argues that the Trump administration violated the Constitution by sabotaging the ACA. The lawsuit said President Trumps various administration actions weakening the ACA conflict with the Constitutions requirement that the president take care that the laws be faithfully executed. The case was filed in 2018 and went to the federal district court in Maryland.

In April 2020, the district court held that the lawsuit could proceed under the Administrative Procedure Act (APA) but not the Take Care Clause of the Constitution. The plaintiffs did not appeal that ruling to the Fourth Circuit and will instead turn to their claims that major provisions of the 2019 payment rule violate the APA.

The most prominent legal issue in Medicaid during the Trump administration was the fight over work requirements. On Dec. 4, 2020, Supreme Court granted Arkansas and Trump administration petitions for certiorari in Arkansas v. Gresham and Azar v. Gresham. The Court will hear the case in early 2021.

CMS advocated for work requirements to be included in Section 1115 waivers. As waivers including work requirements were approved, opponents responded with lawsuits challenging those waivers. District of Columbia District Court Judge James Boasberg repeatedly sided with the opponents of work requirements ordering Arkansas to suspend its work requirement program and blocking the policy from taking effect in Kentucky and New Hampshire.

Other lawsuits challenged the policy in Indiana and Michigan. Boasbergs rulings against work requirements were on appeal at the D.C. Circuit, which heard oral arguments in October 2020. The D.C. Circuit considered the case on an expedited schedule.

On July 22, 2020, the Supreme Court heard Gresham v. Azar. The District Court for the District of Columbia set aside state Medicaid waivers with work requirements. That decision was affirmed by a unanimous panel of the Court of Appeals for the District of Columbia in a decision written by Judge David Sentelle. The attorney general of Arkansas and the Trump administration filed cert petitions on July 13, 2020

Beneficiaries right to sue.Another policy tested in the courts is the extent to which beneficiaries have a right to sue state officials to challenge state actions that curtail Medicaid benefits. The ability to bring such lawsuits in federal court has long been viewed as an important safeguard for beneficiaries, but in recent years, some courts have expressed doubt about the legal theories underlying such lawsuits.

The U.S. Supreme Court declined to weigh in on the issue in 2018. However, currently pending at the 5th Circuit is a lawsuit brought by beneficiaries challenging Texas attempt to remove abortion providers from its Medicaid program. The ruling could extend far beyond the abortion context and help clarify the authority of beneficiaries to sue over a wide range of allegedly unlawful coverage policies by states.

In Medicare, CMS took part in over two controversial payment policies that the agency says will bring down costs but hospitals describe as illegal. Continuing to fight both policies is a priority for the hospital industry in 2021.

340B cuts.One lawsuit challenges the agencys 2018 and 2019 reimbursement cuts for drugs in the 340B drug discount program. Hospitals argued that the agency does not have the authority to make those cuts, and a federal district judge agreed. Oral arguments were heard in Nov. 2019.

On July 31, 2020, the Court of Appeals for the District of Columbia Circuit overturned the 2018 district court decision that found the Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced 2018 and 2019 Medicare payment rates by 30% for many of the hospitals in the 340B Drug-Pricing Program.

In December, 2020, the American Hospital Association, joined by four other national hospital groups and hospital pharmacists representing participants in the 340B drug pricing program, filed afederal lawsuitagainst the Department of Health and Human Services over the departments failure to enforce program requirements and halt drug company actions that undermine the program including limiting the 340b program through contract pharmacies.

The groups are joined in the lawsuit by three 340B hospitals serving patient communities in need that have been harmed by the companies refusals to provide discounts on prescription drugs dispensed at community-based pharmacies, as required by the 340B program.

Site neutrality.American Hospital Association et al. v. Azar, challenged CMS site-neutral policy, which cut payments for outpatient clinic visits at certain off-campus hospital facilities in 2019. Under the policy, the agency reimbursed hospitals for those visits at a rate equivalent to the cost of such services provided in doctors offices under the physician fee schedule. In September 2019, a judge from the District Court for the District of Columbia said CMS lacked authority to make the cuts and vacated them. As with the 340B reimbursement cuts, the litigation did not stop CMS from going ahead with phasing in the cuts in its 2020 outpatient rule.

On July 17, 2020, the Court of Appeals for the District of Columbia Circuit reversed the district court to uphold the 2019 Medicare payment rule expanding outpatient siteneutral payment policies to apply to all hospital outpatient clinic visits, i.e., even at longstanding off-campus provider-based hospital departments (PBDs). The decision by the Court of Appeals allowed the Expanded Site-Neutral Policy to stand, unless reversed by the Supreme Court.

CMS faces drug and hospital industry-led legal challenges to two final rules issued last year that require drug companies and hospitals to disclose more information about pricing. Both challenges are based on the First Amendment.

Drug prices.A drug-pricing rule, issued in May 2019 by the U.S. Food and Drug Administration (FDA), required pharmaceutical companies to include the list prices of their drugs in television advertising, which led to the lawsuit Merck & Co. Inc. et al. v. U.S. Department of Health and Human Services et al. On June 16, 2020, a three-judge panel from the D.C. Circuit Court backed a lower court's decision that the Department of Health and Human Services (HHS) overstepped its regulatory authority. The case is on appeal at the D.C. Circuit.

Hospital prices and transparency.The hospital transparency rule, issued in November 2019 by CMS, required hospitals to publish the confidential rates they negotiate with private insurers. The hospital industry sued, arguing the rule is highly burdensome and violates hospitals free speech. The district judge presiding over the case set an expedited schedule to review it.

In late June 2020, the district court upheld the Trump administrations rule to require hospitals to publicly disclose negotiated rates and prices of certain shoppable items and services. The rule was promulgated under Section 2718(e) of the Public Health Service Act, a provision of the ACA known as the medical loss ratio provision. Hospitals challenged the rule, arguing that the government exceeded its authority, that the rule violates the First Amendment, and that the rule is arbitrary and capricious. The American Hospital Association, the lead plaintiff, quickly appealed to the decision to the DC Circuit. However, on December 29, 2020, the Court of Appeals for the District of Columbia upheld the district courts ruling and rejected the American Hospital Association (AHA) and other hospital groups challenge of the hospital price transparency rule.

AHA had filed for an emergency motion to block the rule from going into effect on Jan. 1, 2021, but that motion was rejected.

Immigrants and health insurance.Two immigration policies finalized in 2019 have health law consequences. The public charge rule, issued in August 2019 by the Department of Homeland Security, and an executive proclamation on immigration, issued in October 2019, have led to two lawsuits.

The public charge rule makes it harder for legal immigrants who receive certain forms of public assistance, including Medicaid, to remain in the country and become permanent U.S. residents. The proclamation requires new immigrants seeking entry into the country to demonstrate that they will be able to obtain health insurance, not including subsidized ACA plans or Medicaid.

On Aug. 5, 2020, a Fourth Circuit panel ruled 2-1 in favor of the Trump administration policy and reversed the nationwide injunction of the policy issued by a federal judge in Maryland.

On Jan. 11, 2020, the U.S. Court of Appeals for the Fourth Circuit was the only federal appeals court to allow the rule to proceed.

The full panel of judges is scheduled to review the August 2020 decision the week of Feb. 8, 2021.

Conscience rule.The rule, issued in May 2019 by the HHS Office of Civil Rights, expands the ability of medical professionals to refuse to provide care based on religious or moral objections. On Jan. 11, 2021, the Ninth Circuit is scheduled to hear arguments Feb. 8, 2021 over the legality of a rule that lets anyone involved in the delivery of health care to deny patients care based on their religious and moral beliefs.

See more here:
The Courts and Healthcare Policy | McGuireWoods Consulting - JDSupra - JD Supra

The Los Angeles County Sheriffs Department (LASD) chose to keep the names of the deputies involved in the October 16 shooting of 25-year-old Fred Williams III in Willowbrook under wraps at the medical examiners inquest last Thursday.

No explanation was given for the decision during the proceedings, but KPCCs Frank Stoltze reports that LASD has claimed it is motivated by a credible threat of violence against the deputy.

Such a claim is deeply suspect for a number of reasons, not least of which includes LASDs overt hostility to both the inquest process and transparency, more generally. But in practical terms, it meant that the inquest would yield little to nothing in the way of new information. Both the shooter and his partner pleaded the Fifth to protect themselves against self-incrimination and their statements and related case information were sealed from public view. Similarly, Detectives John OBrien (seen below, in front of a Blue Lives Matter flag) and Christopher Dimmitt both effectively invoked the Fifth in spirit, claiming that answering any questions would compromise the integrity of the ongoing investigation into Williams shooting by requiring them to disclose information from the sealed files. [Find my live tweets/recap of the inquest here.]

But the goal of the medical examiners inquest was not to determine guilt, as retired Judge Candace Cooper reminded those tuning in Thursday. Instead, she said, it was to determine the manner and mode of death: natural causes, accident (which can include unintentional human conduct), suicide, or death at the hands of another, other than by accident (which does not address question of whether it was justified).

Her disclaimer seemed intended to preempt criticism of the process, given the disappointment that followed the November 30 inquest into the shooting death of 18-year-old Andrs Guardado. Guardado had been killed after deputies Miguel Vega and Chris Hernndez said he looked at them, produced a handgun, and then ran down the driveway of the Gardena auto body shop he was working at. Vega briefly chased Guardado (seen here) before confronting him, ordering him to get on the ground, and then firing six times, hitting Guardado five times in the back.

The findings in that case released just after 5 p.m. on January 15 (the Friday of a three-day weekend) to bury them told people what they already knew. Namely, that the medical cause of Guardados death was multiple gunshot wounds and that the manner of death was by the hands of another person other than by accident.

Key issues casewatchers had at least hoped to see addressed such as the significant discrepancy between deputy Miguel Vegas claims of how and why he shot Guardado and what the autopsy showed to be physically possible had fallen outside of the scope of the inquiry.

So had larger questions about LASDs efforts to paint Guardado as dangerous (via a lengthy press briefing touching on illegal activity at the shop and unrelated shooting incidents) and about the heavy-handedness with which youth in the area are policed (especially in light of the kidnapping, taunting, terrorizing, and threatening of a young skateboarder that eventually led to both Vega and his partner Chris Hernndez being relieved of duty).

All of which signaled to Williams family and friends that the inquest would do little to assist them in their quest for answers or in holding LASD accountable.

Still the process can be said to have some value, both in keeping the names of the victims of police violence alive and in underscoring in a very public way just how difficult it is to exact any kind of transparency from law enforcement in these matters. Early on in the Guardado case, for example, Sheriff Alex Villanueva put a security hold on the autopsy, claiming its release would jeopardize the integrity of the investigation. Then, at the inquest last November, the detectives also hid behind the Fifth Amendment, despite the fact that, as investigators, there was no risk of self-incrimination. Meanwhile, the actual shooter Vega had elected to be out of the country during the first inquest L.A. was holding in over thirty years.

_______

If there was anything noteworthy about the Williams inquest last Thursday, it was that the Critical Incident Video LASD released, which included some of the deputys body camera footage, was played during the proceedings to enter it into the record.

LASD only began rolling out body cams in earnest on October 1st. Williams was killed two weeks later, making this the first such incident captured by LASD on a body cam.

Given that LASD had essentially opted not to participate in the inquest, that footage and the narrative included in the video provided the only detailed version of events from the Sheriffs perspective that the public would hear that day.

That that version also went unchallenged may not be a problem with regard to the specific determination that Judge Cooper is tasked with making, but it is deeply problematic in light of LASDs claims about Williams actions and intentions.

More generally, the extent to which law enforcement has treated being armed, being a threat, and actively intending or seeking to do harm to officers as interchangeable when it comes to Black and brown youth and men is what has allowed them to successfully argue time and again that an officers fear for their life justified a shooting. This is especially true in cases where gang activity is prevalent (e.g. around Mona Park) and someones gang affiliation or presence at a known gang hangout can be used as further support for the claim that the suspect intended to harm to an officer.

In Williams case, LASD offers up what appears to be his mugshot, the prior felony convictions for burglary that (although nonviolent) prevented him from being able to own a gun, his current parole status, and images of the weapon he was carrying all before the body cam footage of the deputys encounter with him is ever played.

At one notable juncture, the video even zooms in on a screengrab of Williams whom the narrator refers to as William throughout holding the gun, which LASD has circled in red. As the viewer is left to take in this frozen image for a full fourteen seconds, the narrator intones, As the deputy rounded the corner, he encountered William, gun in hand, on top of the shed, and a deputy-involved shooting occurred.

Gun in hand is meant to communicate that Williams posed an immediate and deadly threat.

Once the body cam footage is finally played at about 7:23 minutes in, however, we instead see what appears to be a man who was fleeing to avoid jail time for a gun charge Williams had just gotten home after serving time on the burglary charge and who carried the gun so it wouldnt drop out of his sweatpants as he jumped off a roof. We do not see someone who wanted to hurt either the family he ran past in the yard or the deputy.

Just two minutes earlier, Williams had been hanging out in the parking lot at Mona Park with friends and neighbors.

According to what witnesses told the L.A. Times, when LASD pulled up, people in the group assumed the deputies were there to harass them, prompting more than one person to take off. Williams, realizing that deputies had either had spotted the gun on him or were likely to engage him and find it, began running towards 122nd.

In his flight, he followed the trajectory of the yellow line seen below exiting the parking lot, running down the driveway and into the back yard of a nearby home, climbing up on a shed, and jumping over a fence (at the X) into the adjacent property. One deputy tracked him in the vehicle while the other chased him on foot (green arrow).

As he runs, it is clear that he is struggling to keep the gun from slipping out of his elastic waistband.

LASD used the screengrab with the red circle (top left, below) in the critical incident video to show that Williams was indeed armed something observers had initially questioned and point out where he was carrying the gun.

As Williams continues to run toward the back of the house, however, he appears to be struggling to keep it from slipping out of his waistband. He can be seen tugging at it as he comes down the driveway, and appears to try to shield it from the family as he shuffles past them.

He doesnt lift his hands from his waistband until he gets around the last corner, slows down, and moves to climb up on the shed.

Knowing Williams had a weapon, the deputy chasing him on foot appears to be concerned about being ambushed as he came around the corner. He is seen raising his weapon and can be heard shouting Hands! as he reaches the end of the first building and begins to head into the back yard.

Williams has already climbed up on the shed at that point, however, and does not come into the deputys view until the deputy rounds another corner and gets to the back end of the property.

In the full sequence of twelve photos below, which represent about a second and a halfs worth of time (timestamps 17:30:24 and 17:30:25), we see Williams has his back to the deputy from the very outset when his left arm and shoulder first come into view (1st image; atop the shed, center) and the deputy is just beginning to raise his weapon again.

Williams remains angled away from the deputy throughout the entirety of the encounter, never even fully turning his head to focus on the deputy. Given that there was no camera on the shed, it is not clear when Williams took the gun out of his waistband, but it appears he did so as he prepared to jump from the roof, which is when it is first seen in his hand (the seventh image in the sequence below).

As the deputy raises his arms up and out of the camera view (below), we get a clearer look at Williams. We can see that he is wholly intent on figuring out a way to get over the fence, into the next yard, and away from that property (which is largely fenced in by the same high structure) while evading the deputys partner (who was circling the block in the patrol vehicle to cut off Williams escape).

The transition he has to make between the roof and the fence, the height of the fence itself, and the eight(ish)-foot drop to the ground appear to intimidate him; he doesnt just throw himself off the roof. Instead he edges closer to the fence, bends down, and reaches out to grab the fence with his left hand, seeking to vault himself over it.

He remains physically turned away from the deputy throughout this sequence. Although he appears to glance in the deputys direction when he first hears him yell Hey!, his focus is on moving away from the deputy.

It is at this moment the moment that he reaches for the fence with his left hand and moves to vault himself over it that we finally see the gun in his right hand (below; the LASD screengrab is included for reference).

It is also the moment the deputy claims the gun was pointed at him, telling dispatch afterwards, He jumped the fence right before he pointed the 417 [firearm] at me. The coroners investigator Lianna Darabedyan confirmed this is what she had heard from him as well, adding in that the deputy had told her Williams had also turned toward him when pointing his weapon at him.

But examining the footage in sequence, it is clear that Williams is looking down at the fence and the ground throughout and that we only see his right arm (and the gun) because of how he lifts it up to stabilize himself as he vaults. To launch himself over the fence and away from the deputy, he has to grip the edge of a thin sheet of (what appears to be) metal and put his full weight on his left arm (seen in the second frame).

To have pointed the weapon at the deputy at this moment, he would have had to swing his right arm across his body in the opposite direction to the one he is headed in while in midair (in the third and fourth frames below). Doing so would have thrown him off balance, at the very least, and likely caused him to twist in the air. Aiming at the deputy would also have required him to at least turn his head in that direction, and probably his torso, as well neither of which happens here.

Instead, he vaults, left hand still supporting his weight on the fence and right arm still out for balance. The deputy shouts at him to put his hands up as Williams begins to drop out of view. The gun is still all the way over on Williams far side (it can be seen sticking out from behind his right thigh in the penultimate frame).

The deputy fires eight times in quick succession, hitting Williams once in his upper left back, perforating his left lung and his aorta.

Williams later died at the scene.

_______

Once Judge Cooper has finished reviewing the testimony and the sealed statements from the deputies involved in the shooting, she will likely issue the same findings she did in the Guardado case. And given that she saw no need to push LASD on its abuse of the Fifth Amendment in that case, it is unlikely she will try to hold LASD accountable for its intransigence here, either.

Meanwhile, the Sheriffs internal investigation is ongoing. When completed, it will be turned over to the Justice System Integrity Division of the District Attorneys Office, which will determine whether the force used was within the law. Then the case will go back to the Internal Affairs Bureau, which will complete an administrative investigation of the incident before passing it on to LASDs Executive Force Review Committee. That committee will evaluate the deputies performance and determine whether the tactics and use of force were within policy.

While officer-involved shootings were almost always found to be within policy during former D.A. Jackie Laceys tenure, officers tactics were occasionally found wanting by either LASD or LAPD. When that happened, as it did in the case of Keith Bursey, who was shot in the back by LAPD officer Charles Kumlander in 2016 during an investigative stop at Brynhurst and Slauson, the officers in question might be recommended for tactical debrief and extensive retraining, as Kumlander and his partner were. And like Kumlander and his partner, they rarely face other consequences for an in policy killing, even if the tactical lapses played a role in how a victim ended up dead.

The election of George Gascn to D.A. this past November and his promise to revisit some of these cases offered the families of the victims of police violence hope that there might finally be some semblance of justice for their loved ones. Or, at the very least, some accountability.

But what they also want is some reassurance that these processes will work to prevent other families from experiencing this kind of loss going forward. In our next story in this series, we will engage that question by way of unpacking some of the more complex cases, like Burseys, to see what they tell us about the way lower-income Black and brown communities are policed.

In the meanwhile, find the critical incident video from Fred Williams case here. See the live-tweet/recap thread I did on the inquest here. See the live-tweet/recap thread of the Andrs Guardado inquest here and a discussion of the inquest findings here. The findings from the Guardado inquest can be found here or here.

Find me on twitter, @sahrasulaiman, or email me at sahra@streetsblog.org.

_______

Related stories

Other stories on the intersection of repressive policing, disenfranchisement, and trauma in the public space

The impact of trauma:

How under/overpolicing in a community can fuel violence and force youth to fend for themselves:

Racial Profiling:

Incorporating these issues into planning processes:

Other readings on the legacy of redlining:

Link:
LASD Won't Name Deputies Involved in Killing of Fred Williams III at Otherwise Uninformative Inquest - Streetsblog Los Angeles

The smartphone maker is the latest Chinese company butting heads with the US over claims of ties to Beijing.

Chinese smartphone maker Xiaomi is suing the US over its inclusion on a blacklist of Chinese companies.

Xiaomi, which is one of the worlds largest smartphone makers, was last month placed on a record of companies that the US deemed to have links to the Chinese military a claim the company denies.

This bars American investors from holding shares in the company, subject to an executive order signed by former US president Donald Trump in November. Nine other companies were designated as Communist Chinese military companies or CCMCs.

In its lawsuit filed last Friday (29 January) against the US Department of Defense and the US Treasury, Xiaomi said Trumps designation was unlawful and presented no evidence.

[By] failing to provide Xiaomi with notice of, or an opportunity to challenge, the basis for the designation, defendants have deprived Xiaomi of due process of law, in violation of the Fifth Amendment, the lawsuit said.

Defendants designation of Xiaomi as a CCMC is arbitrary and capricious because, among other things, defendants failed to articulate a reasonable explanation for their decision.

Xiaomi claimed that the designation will damage the companys ability to raise funds, sell products, and attract and retain US employees as some may hold shares in the company.

Under the order, US investors will no longer be able to buy shares in Xiaomi, which is listed in Hong Kong, from March of this year and existing shareholders must divest by January 2022.

The company denied that is owned or controlled by, or otherwise affiliated with the Chinese government or military.

The tiff between Xiaomi and the US bears similarities to the long-running feud between the US and Huawei. The Chinese telecoms equipment maker repeatedly denied allegations by the Trump administration that it is linked to Beijing and is a national security threat.

While Trump has left office, there are no immediate signs of the US-China tech tensions abating just yet. The Biden administrations nominee for commerce secretary, Gina Raimondo, said she would protect US telecom networks from Chinese companies but stopped short of committing to retaining Huawei on blacklists. She is expected to be voted in on Wednesday.

See the article here:
Xiaomi sues the US government over military blacklisting Just now - Siliconrepublic.com

On January 27, 2021, the U.S. Court of International Trade (CIT) issued an opinion in which it dismissed all but one claim challenging on various grounds a proclamation by former President Donald Trump (Proclamation 9980) that imposed 25% tariffs on, inter alia, various imported products made of steel pursuant to Section 232 of the Trade Expansion Act of 1962. However, the CIT will continue to consider the claim that President Trump implemented additional and new duties on certain steel derivative products after the statutory time period for such action had lapsed.

PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, filed a complaint (subsequently amended) in the CIT on February 4, 2020, arguing that President Trumps Proclamation 9980 was unlawful and unconstitutional. See Update of February 14, 2020. On March 20, 2020, the U.S. Department of Justice (DOJ) filed a motion to dismiss the complaint, arguing that the new tariffs did not violate the Section 232 procedural requirements or PrimeSources right to due process. See Update of March 31, 2020.

In its January 27, 2021 order, the CIT dismissed PrimeSources claims that: (i) the imposition of Section 232 duties on the derivative products was procedurally deficient; (ii) the secretary of commerce violated all of the Section 232 statutory provisions; (iii) PrimeSource was deprived of its Fifth Amendment due process constitutional rights; and (iv) Section 232 is unconstitutional as it unlawfully delegates legislative authority from Congress to the president.

The CIT did not dismiss PrimeSources claim that Proclamation 9980 was issued 638 days after the transmittal of the Section 232 steel investigation report to the president (well after the 105 days set forth in 19 U.S.C. 1862(c)(1)) and is thus null and void. Despite DOJ arguing that the president has the authority to modify Section 232 tariffs at any time to protect national security (including adjusting imports of articles not addressed in Proclamation 9705 that the president designated as derivatives of identified steel articles), the CIT found that this claim rests upon a plain meaning interpretation of the statute. The opinion states that DOJs flexible reading of [19 U.S.C. 1862(c)(1)] would require us to interpret the action taken by Proclamation 9980 and that taken by Proclamation 9705 as parts of the same action, which presents several interpretive problems. The opinion concludes that there is no flexible reading of [19 U.S.C. 1862(c)(1)] Section 232(c)(1) that suffices to allow the President to adjust, through new tariffs, imports of derivatives of previously-affected articles outside of the time limits Congress imposed, and the appellate decisions on which defendants rely do not lend support to any such reading.

The parties now have until February 26, 2021, to file a joint schedule that will govern the briefing and hearing schedule for the remaining unresolved factual issues of this claim.

Originally posted here:
CIT Dismisses All but One Claim in Section 232 Steel Tariff Dispute - Lexology

At the beginning of 2020 the Supreme Court appeared poised to take on multiple patent cases, but a series ofcertdenials resulted in only one decision from the High Court in 2020. The Supreme Court avoided entering the Section 101 debate by denyingcertiorarifor a number relevant patent cases includingAthena Diagnostics Inc. v. Mayo Collaborative Services, LLC,No. 19-430 (2020) (IP Update, Vol. 22, No. 2) andChamberlain Group, Inc. v. One World Techs., Inc., No. 19-1299 (2019) (IP Update, Jan. 2020). The Court also deniedcertin various cases relating to whether the America Invents Act (AIA) violates the Takings Clause of the Fifth Amendment, includingCollabo Innovations v. Sony Corp.No. 19-601 (2019) (IP Law Year in Review 2019).

The only patent decision to come from the Supreme Court in 2020 wasThryv, Inc. v. Click-to-Call Techs., LP, 590 US ___ (2020), in which the Court held that 35 USC 314(d) precludes judicial review of the Patent Trial and Appeals Boards (PTAB)application of 315(b)s one-year time bar. The Court largely reiterated its reasoning inCuozzo Speed Techs., LLC v. Lee, 579 US ___ (2016) (IP Update,Vol. 19, No. 7) stating that because the 315(b) time bar is closely tied to the application and interpretation of statutes related to the institution determination, a party may not appeal the PTABs application of the one-year time bar of 315(b). In a lengthy dissent, Justice Neil Gorsuch argued that 314(d)s prohibition on appeal applied only to the subsections under this section of 314, as explicitly stated in the text of the statute, especially given the strong presumption

View original post here:
2020 at the Supreme Court - Lexology