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A daily report on important news nationwide from Ted Gest of Criminal Justice Journalists, plus commentary and research highlights.

 Judge Rejects Purdue Pharma's Opioid Settlement

A federal judge rejected OxyContin maker Purdue Pharma’s bankruptcy settlement of thousands of lawsuits over the opioid epidemic Thursday because of a provision that would protect members of the Sackler family from facing litigation of their own, the Associated Press reports. U.S. District Judge Colleen McMahon in New York said federal bankruptcy law does not give the bankruptcy judge who had accepted the plan the authority to grant that kind of release for people who are not declaring bankruptcy themselves. Purdue said the ruling will not hurt the company’s operations, but it will make it harder for company and Sackler money to be used to fight the opioid crisis as the legal fight continues.

Purdue sought bankruptcy protection in 2019 as it faced thousands of lawsuits claiming the company pushed doctors to prescribe OxyContin, helping cause an opioid crisis that has been linked to more than 500,000 deaths in the U.S. over the last two decades. Through the bankruptcy court, it worked out a deal with its creditors. Members of the Sackler family would give up ownership of the company, which would transform into a different kind of entity that would still sell opioids — but with profits being used to fight the crisis. It would also develop new anti-addiction and anti-overdose drugs and provide them at little or no cost. Sackler family members would contribute $4.5 billion in cash and charitable assets as part of a deal that could be worth $10 billion, including the value of the new drugs.

 Michael Cohen Hits Trump, Barr With Retaliation Suit

Michael Cohen filed suit Thursday against former President Trump, former Attorney General William Barr, and federal prison officials for putting a gag order on him and sending him back to custody after Cohen criticized Trump and promoted his tell-all book while under home confinement, Courthouse News Service reports. Cohen, who pleaded guilty to lying to Congress and campaign violations at Trump’s direction, had served one-third of his three-year sentence when he was transferred to home confinement. In the early days of the COVIC-19 pandemic, the Federal Bureau of Prisons determined Cohen was at high risk for serious illness and death from the virus. No longer in prison, Cohen took to social media in June and July of 2020 to plug his upcoming book about working with Trump. Just a week after he used the hashtag #WillSpeakSoon, Cohen was hit with a gag order banning him from speaking to the media or posting on social media.

“The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community,” the order said. Cohen asked for clarification, and three U.S. marshals came in with an order to imprison him on the basis that he had failed to agree to the terms of his monitoring. Cohen spent the next 16 days in solitary confinement before U.S. District Judge Alvin Hellerstein granted him a preliminary injunction, agreeing that the incarceration was retaliatory. Cohen's complaint also alleges false arrest and imprisonment, negligent failure to protect, and both negligent and intentional infliction of emotional distress. The complaint outlines a history of retaliation during Trump’s presidency, including a June 2020 lawsuit against former national security adviser John Bolton to stop him from publishing a memoir.

 Remaining Missionaries Released by Haitian Gang

A Haitian gang released the remaining 12 hostages it had abducted more than two months after they were kidnapped, their Ohio-based religious group announced, NBC reports. Haiti National Police spokesman Gary Desrosiers confirmed that the hostages had been found safe. Seventeen people working with the organization Christian Aid Ministries were kidnapped in October by the 400 Mawozo gang, which controls the Ganthier commune in the suburb of Port-au-Prince where the missionaries were taken. The missionaries were taken as they returned from an orphanage an hour and a half from the ministry's base. The group, based in Millersburg, Oh, repeatedly called for supporters to fast and pray for the hostages' safe release, at one point encouraging Christians to fast for three days.

Haitian officials said the group’s leader was demanding $1 million per hostage, totaling $17 million. A video circulating on social media, which a U.S. official said appeared to be legitimate, threatened to kill hostages if the ransom demand wasn’t met. Two of the missionaries were released last month, and three more were freed this month. Haiti has faced a series of disasters over the years. President Jovenel Moïse was assassinated in July, and a 7.2-magnitude earthquake hit in August. Haiti struggles with a severe shortage of fuel and spiraling gas prices, which recently forced hospitals to turn away patients and temporarily shut schools and businesses. The governments of the U.S. and Canada have urged their citizens to leave.

 Molina to Replace Schiraldi as NYC Jails Chief

New York City Mayor-elect Eric Adams is expected to name Louis Molina, a former New York City police officer who oversees a public safety department in Las Vegas, to be commissioner of the city’s embattled Correction Department, reports the New York Times. The post is likely to be among the most challenging in. Adams’s administration as the new mayor confronts a crisis of violence and disorder that has crippled the city's Rikers Island jail complex. Molina would be the second person appointed to the role in just over six months. Molina is expected to be tasked with immediately improving conditions inside the jail complex after months of chaos. He will also be faced with restoring relations with correction officers who have revolted against the city’s current leadership during the pandemic.

He inherit a plan started by Mayor Bill de Blasio to close Rikers by 2027 and replace it with smaller jails in Manhattan, Brooklyn, Queens and the Bronx. For 11 months from 2016 to 2017, Molina served as the department’s internal monitor focused on tracking the city’s attempt to comply with a settlement it agreed to in a lawsuit and a federal civil rights investigation related to the use of force and other conditions on the island. There have been 15 deaths in the city's jail system this year. Molina will replace Vincent Schiraldi, the current correction commissioner. Schiraldi, a reform-minded researcher who spent much of his career leading nonprofit organizations, had just taken up the correction post in June, and had wanted to stay on in the new administration. Outside advocacy groups had lobbied Adams in recent weeks to keep him amid signs that conditions on the island were improving from the low points of this summer and fall. Schiraldi clashed with Correction Officers’ Benevolent Association in recent months, as basic operations in the Rikers complex have broken down and the city implemented a vaccine mandate for officers.

 Deposits in Federal Crime Victim Fund Up Under New Law

Since Congress expanded the category of eligible deposits in the federal crime victims fund (VOCA), it received its largest monthly deposit in the last four fiscal years, says Associate Attorney General Vanita Gupta.The so-called VOCA Fix provided that deferred and non-deferred prosecution deposits could be accepted by the fund. Previously, only federal court verdicts and settlements could be used for crime victim aid. The total deposited into the fund since Congress acted has been $224 million, which Gupta called "very encouraging news."

The new legislation gives states discretion to allow exceptions to the requirement that victims cooperate with reasonable requests from law enforcement as a condition of compensation. "This, too, was done with the needs of victims firmly in mind," Gupta said, speaking to a group of state officials who oversee crime victim aid. She said a DOJ center for crime victim fund administrators is helping states manage the program "to extend services to historically underserved communities and promote promising policies, practices and programs." She added that a new DOJ Center for Culturally Responsive Services will help "increase access to victim services and victim compensation for victims of crime in areas that have been historically underserved, marginalized, and adversely affected by inequality, including communities of color." Gupta said the new initiatives will help "expand the landscape of options and improve access for all victims and survivors of crime."

 U.S. Execution Total This Year Lowest Since 1988

The U.S. is at its lowest level of executions in decades, continuing a downward trend in executions and death sentences since the 1970s when the current era of capital punishment began, reports USA Today. There were 11 executions in 2021 and 18 people were sentenced to death. The number of executions is down from 17 in 2020, and is the fewest since 1988, says the Death Penalty Information Center report found. The number of people receiving death sentences matched the record from last year. This is the seventh year in a row with fewer than 30 executions and 50 new death sentences. Virginia became the first Southern U.S. state to eradicate the death penalty this year after having the second-highest number of executions of any state. It was the 23rd state to abolish capital punishment.

All but one prisoner executed in 2021 had either a serious mental illness, brain injury or damage, indications of an intellectual disability or chronic childhood trauma, said the center's Ngozi Ndulue. "We are seeing fewer and fewer executions, but those that do occur demonstrate that the death penalty is not reserved for the worst of the worst, but the most vulnerable of the vulnerable," Ndulue said. The center said death sentences and executions disproportionately involved victims who were white and female, and that only defendants of color were executed for cross-racial murders. Ten of the 18 death sentences were against people who are Black or Latino. Six of the 11 executed were Black. Surveys by Pew Research Center between 1996 and 2020 have shown a decline in support for the death penalty from 78 percent to 52 percent. In a 2021 Pew online study, support was at 60 percent. Gallup's 2021 poll shows 54 percent support. In 2021, two death row prisoners were exonerated of their crimes. That brings the total since 1972 to 186 exonerations of death row prisoners. Death sentences and executions are concentrated in a few Southern states. Alabama, Oklahoma and Texas handed down half of 2021's death sentences.

 Texas Family Gets $5M in Wrongful Death Settlement

A Texas county has agreed to pay $5 million to settle wrongful death claims brought by the family of Javier Ambler, a Black motorist who was shot fatally with a stun gun during a traffic stop while cameras with reality TV show “Live PD” rolled, Courthouse News Service reports. The Williamson County Commissioners Court voted to pay $1.6 million dollars with the remaining $3.4 million to be paid by Travelers Insurance. Each of Ambler’s parents will receive $1 million and each of his two children will get $1.5 million. County sheriff’s deputies tried to pull over Ambler, 40, on March 28, 2019, for failure to dim his headlights to oncoming traffic. He allegedly refused to stop and led deputies and responding Austin police on a 20-minute chase. The Austin Police Department released a disturbing six-minute body camera video of Ambler’s stop more than one year after he died. Police are shown dragging Ambler out of his car and shooting him with a stun gun four times as they struggle to handcuff him behind his back while on his stomach. 

Ambler is heard gasping “I’m not resisting” as officers initially tried to handcuff him on the ground. This contradicts a state report that said Ambler was resisting being handcuffed. “Live PD” was canceled by cable channel A&E last year after it admitted video of Ambler’s arrest it recorded was destroyed. The report said Ambler exited the car but “did not immediately comply with the deputy’s verbal commands.” Former Williamson County Sheriff Robert Chody refused to cooperate with an investigation of the case by former Travis County District Attorney Margaret Moore, resulting in county commissioners' demanding his resignation. Chody was arrested in December 2020 and booked into his own jail, charged with felony evidence tampering for allegedly destroying video of Ambler’s arrest and death. Two former sheriff deputies involved in the chase, J.J. Johnson and Zach Camden, were charged with second-degree manslaughter. 

 Court Makes TX Officers Possibly Liable for Death

A federal appeals court ruled that four Dallas police officers can be held liable in the 2016 death of Tony Timpa, a mentally ill man who died after police knelt on his back and shoulders for more than 14 minutes in an encounter captured on body-camera footage. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed last year's ruling by a federal judge who dismissed a civil suit brought by Timpa's family, reports the Wall Street Journal. Prosecutors had decided not to pursue criminal charges. The case on appeal emerged as the first major test of the lawfulness of facedown prone restraints since former Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd with a similar maneuver. 

Timpa's family claimed Dallas officers asphyxiated Timpa, who had a history of mental problems and was unarmed, handcuffed and barefoot during a struggle with police. He stopped moving minutes before the officer got off him, the footage shows. In filings, city attorneys have argued that the officer who knelt on Timpa, and others at the scene, didn't act unreasonably. To keep its lawsuit going, Timpa's family had to overcome the hurdle known as qualified immunity, a doctrine that shields police and other government personnel from civil liability if the conduct wasn't obviously unlawful and unreasonable. A trio of Republican-appointed appeals judges disagreed that the force police used against Timpa wasn't clearly excessive, as a federal judge had ruled. "We recognize that our police officers are often asked to make split-second judgments about the use of force, but the Constitution demands that officers use no more force than necessary," wrote Circuit Judge Edith Brown Clement. The ruling revived claims against Officer Dustin Dillard, who knelt on Timpa, and the claims against a supervisor at the scene and against two other officers who can be heard cracking jokes about Timpa after he lost consciousness.

 Chauvin Pleads Guilty in Floyd Civil Rights Case

Former Minneapolis police officer Derek Chauvin pleaded guilty to a federal charge that he deprived George Floyd of his rights during the 2020, arrest that led to the Black man’s death. He also pleaded guilty to an unrelated but similar count stemming from the use of force in 2017 against a then-14-year-old boy, who is also Black, the Associated Press reports. Chauvin admitted he knew what he did to Floyd was wrong and that he had a “callous and wanton disregard” for Floyd’s life, the plea agreement said. It said Chauvin “was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse.” With the guilty plea, Chauvin avoids the possibility of a life sentence. Instead, the defense and prosecutors agreed to a sentence ranging from 20 to 25 years, with prosecutors saying they will seek 25. With credit for good time in the federal system, he would serve anywhere from 17 years to 21 years and three months behind bars.

Chauvin is already in state prison, serving a 22 1/2-year sentence on state murder and manslaughter convictions. In the state system, he would have been released on parole after 15 years. The plea agreement says it’s expected that the federal and state sentences would be served at the same time — not one after the other. “Hearing him accept accountability was nice. But I didn’t feel a thing,” said Brandon Williams, Floyd’s nephew. “That guy’s a monster ... He knew what he was doing. He had nine minutes and 29 seconds to understand what he was doing and stop kneeling. He chose not to.” While Floyd’s family and the city of Minneapolis have reached a $27 million settlement in Floyd’s death, the teen who was injured when Chauvin arrested him in 2017 intends to sue Chauvin, the city, Police Chief Medaria Arradondo and possibly others. The other three former officers involved in Floyd’s arrest — Thomas Lane, J. Kueng and Tou Thao — face a federal trial in January alleging they violated Floyd’s rights and a state trial in March on charges of aiding and abetting both murder and manslaughter.

 Bootleg Fentanyl is Spreading in U.S.

Zachary Didier took what looked like a prescription pain pill just after Christmas last year. It contained an illicit form of the powerful opioid fentanyl, which they say killed the 17-year-old Californian. His death was one of a record 100,000 fatal overdoses in a year-long period through April that have demonstrated how the illegal drug supply is becoming more toxic and dangerous. A bootleg version of fentanyl made mainly by Mexican drug cartels is spreading to more corners of the U.S., increasingly inside fake pills taken by people who may believe they are consuming less-potent drugs, reports the Wall Street Journal. It robs you of any chance to get red flags,” said Laura Didier, Zachary’s mother. His parents didn’t know he was using pills recreationally. Federal authorities say they are encountering more pills passing for medications like oxycodone that contain fentanyl. By late September, they had seized more than 9.5 million fake pills, many containing fentanyl, a haul higher than in the two prior years combined. “The supply of these pills is going up exponentially,” said Joseph Palamar of New York University. “They are easy to transport and difficult to track. Pills are the ultimate fake out. You can fake out your parents, your friends, your partner, law enforcement.”

The mass production of such pills by Mexican cartels has escalated the threat. Pill-related deaths are particularly common in the western U.S. Fentanyl appears to be gaining ground there after surfacing mainly in eastern states for years. Fentanyl is made from chemicals, rather than the opium-poppy cultivation required to produce heroin. It can also be 50 times more powerful than heroin. Pills containing fentanyl are often made to look like less-powerful prescription opioids. Fentanyl can also show up in tablets masquerading as other kinds of drugs, like benzodiazepines, a class of sometimes-abused medication used to treat anxiety. Users with no tolerance to opioids can end up ingesting an extremely powerful dose. Toxicologists and law-enforcement authorities are engaged in an evolving effort to spot, and then outlaw, different synthetic opioids. Several years ago these were often fentanyl analogues that faded after the DEA put them on its schedule of illegal drugs. There is a legitimate form of fentanyl sold to treat pain. 

 In Reversal, Bay Area Mayors Seek More Police

More than a year after moving to cut and redistribute police funding amid racial justice protests, two city leaders in Northern California now are pushing to hire more officers, crack down on crime and expand police surveillance powers, reports Courthouse News Service. The mayors of San Francisco and its neighbor Oakland have proposed to increase police presence in their cities and broaden law enforcement's ability to use surveillance tools, such as license plate readers and access to private security camera networks. The proposals come as both cities struggle with an increase in homicides and violent crime and a spike in robberies targeting high-end retailers and cannabis dispensaries. San Francisco Mayor London Breed announced a plan to flood the city's Tenderloin neighborhood, an area notorious for open-air drug use and drug dealing, with more officers. She urged the city's board of supervisors to increase the police overtime budget. The mayor also called for a crackdown on public drug dealing and drug use, unlicensed street vendors and changes to a law that limits police access to private security camera networks. 

Across the bay in Oakland, Mayor Libby Schaaf asked for city legislators to approve money to hire more officers. The request came after department staffing fell below 678, the threshold the city must meet to keep collecting a special tax approved by voters in a 2014. Schaaf also asked Gov. Gavin Newsom to continue sending California Highway Patrol officers to enforce traffic laws in Oakland and to install license-plate readers around highway ramps and major city arteries. The request comes amid a spike in homicides, car jackings and robberies in Oakland. Brian Hofer, chair of Oakland's privacy advisory commission and director of the non-profit watchdog group Secure Justice, said studies show hiring more officers has no effect on violent crime rates. He said the city should focus its resources on combatting gun violence instead of having officers respond to less urgent situations that could be handled by civilian employees or social service workers. "It's a lack of vision," Hofer said. "We're just doing the same things we've been doing for the last few decades and increasing police contact with folks, and mass incarceration has not improved public safety."

 DOJ Faces 'Conundrum' With Meadows Contempt Case

The U.S. House decision to hold former White House chief of staff Mark Meadows in criminal contempt puts the Justice Department in a political and legal conundrum. If prosecutors charge Meadows for failing to comply with a subpoena from the committee investigating the Jan. 6 U.S. Capitol riot they could risk undermining the ability of the executive branch to keep officials' discussions private. If they decline, federal prosecutors could hamstring the House probe and face blistering criticism from Democrats and liberal groups, the Washington Post reports. Meadows is refusing to appear before the committee because "as a former Chief of Staff he cannot be compelled to appear for questioning and that he as a witness is not licensed to waive Executive Privilege claimed by the former president," his attorney says. Meadows has been at least somewhat cooperative — turning over thousands of documents, including personal emails and text messages, that his attorneys believed were not privileged. In early December, his attorney said he would not appear for a deposition and would respond only to written questions.

The House voted in October to hold former White House strategist Stephen Bannon in criminal contempt for his refusal to comply with a subpoena from the Jan. 6 committee. Less than a month later, the Justice Department charged Bannon with two counts of contempt. Bringing a case against Meadows will be more challenging than bringing one against Bannon. Bannon was not a White House official during the events surrounding Jan. 6 — so it’s harder for him to claim his conversations with the president should be protected. Meadows was Trump’s chief of staff during the insurrection. Past Justice Department legal opinions have asserted that, if the president invokes executive privilege, his senior aides cannot be made to testify. This instance is unusual, however, in that the current and former presidents find themselves at odds.

 Critics Seek DOJ Probe of Texas Border Enforcement

Advocates for immigrants and civil rights are asking the U.S. Department of Justice to investigate Texas Gov. Greg Abbott’s border enforcement operation, alleging the program fuels anti-immigrant hatred. The coalition, including the American Civil Liberties Union in Texas, filed a federal discrimination complaint against Operation Lone Star, documenting alleged civil rights violations against mostly Black and non-White migrants suspected of crossing the border illegally and targeted by state authorities for arrest and prosecution, reports the Washington Post. The nearly $2 billion Operation Lone Star program was billed by state lawmakers as Texas’ answer to Biden administration border policies they deem ineffective at curbing illegal immigration. U.S. Border Patrol encountered more than 1.7 million migrants, many seeking asylum, at the U.S.-Mexico border this year. 

Texas has sent thousands of National Guard soldiers and state troopers to the border since the operation’s launch in March. Abbott went a step further in July, directing troopers to arrest migrant men and charge them with state crimes, such as criminal trespassing, with enhanced penalties. The coalition argues that Texas is usurping the federal government’s immigration enforcement responsibility by creating its own system that weaponizes state law to “punish migrants for coming to the United States,” the complaint charges. The group also alleges that local officials have used xenophobic language and openly tried to collaborate with militia groups or contract with private security to help detain immigrants. Operation Lone Star has been plagued by missteps in prosecutions that have led to case dismissals and a large-scale release of migrants from state custody after hundreds were held for weeks without charges or access to attorneys. 

 Federal Appeals Court Upholds Bump Stock Ban

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit panel upheld a Trump-era rule banning the ownership of bump stocks – which enable semiautomatic weapons to fire continuously – under a decades-old federal law prohibiting machine guns, Courthouse News Service reports. The court rejected a challenge from a Texas-based bump stock owner, who argued that the rule “contradicts the plain language of the statute” because bump stocks do not shoot “more than one shot…by a single function of the trigger.” Bump stocks were developed in the early 2000s but only came under fire after the 2017 Las Vegas mass shooting in which 58 people were killed and hundreds more injured after Stephen Paddock opened fire from his hotel room with rifles equipped with bump stocks. U.S. District Judge David Ezra of the Western District of Texas last year found that pushing on a trigger “is automatic fire.”

Appeals Judge Stephen Higginson wrote that, "A bump stock is ‘a part designed and intended’ to enable a person armed with a semiautomatic rifle to ‘shoot[] . . . automatically more than one shot, without manual reloading, by a single function of the trigger ... Accordingly, we agree with the district court that the bump stock rule properly classifies bump stocks as ‘machinegun[s]’ for purposes of federal law.” The court ruled that the gun owner lacked standing to challenge in federal court the ATF’s authority to issue the bump stock rule, which went into effect in 2019. The federal law outlawing machine guns was written in 1934. The Fifth Circuit ruling comes less than two weeks after the en banc Sixth Circuit split 8-8 in a similar challenge to the classification of bump stocks as machine guns.

 Record Number of Firearms Seized at Airports

Nearly 5,700 firearms have been confiscated at airport checkpoints in 2021, the highest number recorded by the Transportation Security Agency (TSA) since its inception. The vast majority of weapons — 85 percent — were loaded with ammunition, CBS News reports. Airports in Atlanta, Dallas-Fort Worth and Houston ranked highest in confiscated firearms. "It's an all time high," said TSA Administrator David Pekoske. The previous high mark was 4,400 guns confiscated in 2019.. Pekoske believes the increase in firearm seizures reflects "what's going on in the country ... there's just more firearm carriage."

People toting either loaded firearms or unloaded firearms with accessible ammunition may face $3,000-$10,000 in fines, plus a referral to law enforcement. For repeat offenders, the fee is higher. Those with a history of carrying loaded weapons into security checkpoints may be forced to shell out as much as $13,910. "It's a pretty costly mistake to make," Pekoske said. The top 10 airports for firearms stops are Atlanta, Dallas Fort Worth, Houston (Hobby), Phoenix, Nashville, Denver, Fort Lauderdale, Orlando, New Orleans and Salt Lake City.

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