Texas defends ban on making smokable hemp products

(CN) — Texas’ ban on the manufacture of smokable hemp is justified due to health concerns tied to inhaling smoke, a state attorney argued Tuesday, even though there’s no prohibition on the sale of such products made by out-of-state companies.

After decades of cannabis prohibition that did not differentiate between marijuana and hemp, which contains miniscule amounts of THC, the psychoactive compound in marijuana, the federal government undid the shackles on domestic hemp production with its passage of the Agricultural Improvement Act of 2018.

Also called the Farm Bill, it authorizes the transport of hemp-based products across states lines for commercial purposes, and the sale, transport and possession of these products with no restrictions. But it did give states leave to devise their own hemp-regulation schemes.

Taking the feds’ lead, the Texas Legislature passed HB 1325 in 2019, authorizing the licensed cultivation of hemp and barring local governments from passing regulations on hemp processing, or the manufacture and sale of consumable hemp products.

The bill did, however, direct the state’s health and human services commissioner to adopt a rule effective August 2020 stating, “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.”

Four companies quickly sued, led by Dallas-based affiliates Crown Distributing LLC and America Juice Co., makers of Hempettes, which are sold in packaging identical to cigarette packs and are marketed as “the first cigarette-styled CBD pre-roll in the world.” CBD is a chemical derivative of the cannabis plant that does not produce the intoxicating effects of marijuana.

CBD is in hemp and marijuana and is said to have many health benefits, though they are anecdotal and not scientifically proven. It is an ingredient in many products that run the gamut from sleep-aid tinctures to pain-relief lotions, chap sticks, beautifying face masks, bath bombs and oils for dogs and cats.

After blocking the law with an injunction, a state district judge in Austin issued a final judgment last November declaring it unconstitutional and blocking enforcement of the rule barring in-state production and sales of smokable hemp products.

In defending the rule before the trial judge, Texas Attorney General Ken Paxton’s lawyers called no witnesses and offered no exhibits. They did not even cross-examine the challenger’s witnesses. Their defense focused on a rational-basis argument pressed Tuesday before the state Supreme Court by Texas Deputy Solicitor General Bill Davis.

Davis argued the statute should stand because it is only subject to rational-basis judicial review, so Texas only needs to show it is rationally related to a legitimate government interest.

The state argued in briefs the law furthers the government law enforcement interest of mitigating the difficulty police would have in distinguishing hemp from marijuana. But Davis cabined his arguments Tuesday in health issues and explained why the state believes it does not have to back its claims with any evidence.

“If I could focus on one it would be the health concerns that underlie inhalation of any kind of smoke,” Davis said. “I think if we were litigating this case in 1950 it might be the case that we would need evidence that inhaling smoke is not good for you, but in the 2020s we don’t need that evidence. That’s something that the rational-basis standard allows us to make a showing of without an evidentiary burden.”

Justice Jane Bland asked Davis if that reasoning is undercut by the fact out-of-state manufacturers can sell their smokable hemp products in Texas, and if the state has an interest in ensuring people in other states don’t smoke hemp.

“The state does have that interest but the statute doesn’t pursue its objective to that extent,” Davis replied. But he claimed under the rational-basis standard Texas was justified in taking an indirect approach to addressing its health concerns and it could go further and ban all sales of such products.

Justice James Blacklock asked Davis if the rational-basis standard was the right test, or if there was an even lower standard that should apply that would force the court to give even more deference to the state.

Poking holes in the hemp companies’ case, Blacklock added, “I just wonder whether there’s any liberty or property interests that’s rooted in the legal traditions of this country that you can point to say I’m entitled to review by the courts on the basis of the Constitution of the government’s decision to regulate what I’m doing in these sorts of areas.”

Davis readily agreed. He noted that before the state’s legalization of hemp production, Texas law did not distinguish between the flower, or bud, of marijuana plants and hemp plants – they were both illegal.

But the hemp companies’ attorney, Constance Pfeiffer of the Houston firm Yetter Coleman, eviscerated the state’s rationale. She argued its alleged fears of Texans suffering health complications from smoke inhalation have nothing to do with manufacturing or processing smokable hemp products.

“It’s not saying this has an environmental impact, or it’s a nuisance, or it’s something harmful to public health created by the manufacturing of smokable hemp. They are saying we are trying to mitigate end use. And simultaneously they are saying local governments cannot prohibit end use,” she said.

She added if state legislators sincerely wanted to protect public health they could have barred anyone under 18 or 21 from buying hemp cigarettes or cigars or vape cartridges. In the same session they passed the statute at issue, Pfeiffer noted, they raised the legal age for buying and using tobacco from 18 to 21.

“They’re asking for not just any conceivable possible basis kind of review, they’re basically saying ‘If we can stand here and say public health you can’t scrutinize the statute,’” Pfeiffer said.

The law’s irrationality is further revealed, Pfeiffer continued, by the fact the Dallas-based plaintiffs merely had to move some of their operations to Oklahoma “where they can lawfully manufacture and process hemp and ship it right back into Texas.”

Despite the strength of the challengers’ arguments, several of the all-Republican Texas Supreme Court’s nine justices appeared to be looking for a way to let the statute stand.

In closing, Davis, the deputy solicitor general, said the rational-basis standard does not task courts with assessing what the Legislature had in mind when it passed a statute.

Justice Jeff Boyd teased out Davis’ logic.

“So if we can come up with a legitimate purpose to which this law is rationally related, that saves the law regardless of whether the state or any department or any of its lawyers have ever raised that legitimate purpose to this court?” he asked.

“That’s correct,” Davis replied. “Because the court is looking to whether the statute does something that is beneficial to Texans regardless if anyone articulated that rationale.”

The court did not say when it would rule on the case.

from Courthouse News

Drought expands grip on California and Southwest

(CN) — California’s water issues are compounding as drought is expanding in the state, according to the latest U.S. Drought Monitor report. 

Approximately 35% of the Golden State is immured in extreme drought, the second worst category, which is an increase from 12% just last week. The culprit has been the record-setting dry beginning to 2022, as several regions throughout California have not had a single drop of precipitation since December when the last major storm pushed through. 

But California is not alone. 

Forecasters with the National Oceanic and Atmospheric Administration said the outlook for spring is more clear skies and dry weather, meaning drought will be bad in California, but also in the Four Corners region and other areas where reservoirs are depleted. 

“With nearly 60% of the continental U.S. experiencing minor to exceptional drought conditions, this is the largest drought coverage we’ve seen in the U.S. since 2013,” said Jon Gottschalck with NOAA. “It’s very likely, or makes sense, that certainly some of the drought areas will become worse.”

Officials fear that will make the water picture in California quite bleak. 

Water availability is a real concern as allocation from the Central Valley Project is likely to be either much reduced or non-existent for many farmers in California’s Central Valley, according to the U.S. Bureau of Reclamation.

Lake Shasta is at 38% of its total capacity, which is well below the historic average of 50%. Folsom Reservoir presents a more stark contrast. Its historic average for capacity sits at 95%, or nearly full. Right now it is about half full. 

“With only one month left in California’s wet season and no major storms in the forecast, Californians should plan for a third year of drought conditions,” said DWR Director Karla Nemeth during the last snow survey. 

Drought is also intensifying in northern Texas and Oklahoma in the panhandle as well as the Four Corners region, where Colorado, Arizona, Utah and New Mexico intersect. 

“The Colorado River Basin, we are seeing the Bureau of Reclamation begin their calls for additional actions that will provide or curtail some water allocations,” said Ed Clark of NOAA during Thursday’s meeting with reporters. 

Lake Powell dipped below a critical threshold of 3,525 feet above sea level this past week, something that has not occurred since the reservoir was first filled with water in 1963. 

If the water falls by another 35 feet, the hydroelectric dam that supplies power to surrounding communities will be forced to stop operating. Officials at NOAA are increasingly pointing to the changing climate as the reason for the lack of precipitation in the American West. While droughts have always been a parcel of life in the West, climate change means that droughts happen with more frequency and more intensity due to rising temperatures, according to UN Scientists.

from Courthouse News

Roe supporters say its reversal would be dead canary for democracy

WASHINGTON (CN) — Before the Supreme Court has made its decision in a challenge to the decades-old precedent that gave women the right to abortion, state legislatures across the country have begun operating under the assumption that Roe v. Wade is no longer the law of the land. But with state legislatures and the court acting against the wishes of the majority of Americans, Roe’s undoing could signal bigger problems. 

In December the court heard an all-out challenge to the 1973 precedent that affirmed access to abortion as a constitutional right. Roe has been challenged since its inception, but this moment is different. With a 6-3 supermajority-conservative court, it seems that at the very least abortion access across the country will be limited further. While predicting what the court will do is often a fruitless effort, state legislatures are going all in on what appears like a forgone conclusion. 

“Conservative legislators are flooding the zone with abortion restrictions, and they run the gamut from complete bans to restrictions on medication abortion,” Lindsay Langholz, director of policy and program at the American Constitution Society, said in a phone call. 

The challenge the court heard on Roe from Mississippi stems from a law that would ban all abortions after 15 weeks. One option for the court could be to stick to that law and limit all abortions after 15 weeks — a marked decrease from the currently in-use viability line, which is around 24 weeks. States like Florida, Arizona and West Virginia are already passing laws to this effect in anticipation of the court’s ruling. 

“You can tell that they expect the Supreme Court to uphold Mississippi’s 15-week ban, and they want to be ready to go as soon as that kind of a limit has been approved and blessed by the court,” Jessica Arons, a senior policy counsel for reproductive freedom at the ACLU, said in a phone call. “So they’re trying to cut off care immediately in that fashion. That’s their most conservative bet; they think that chances are very high that they’ll get at least that much.” 

Experts say the reaction from legislatures to the court’s perceived actions is rare. 

“The court for over six months has chosen not to uphold Texans’ access to their constitutional right to abortion, and legislators have taken note,” Langholz said. “They have taken it as a signal to pass the bills that they need to pass so that they are in a position to ban as much abortion access as possible when the court decides and that is a pretty unusual situation that we’re seeing.” 

The court’s actions in the Mississippi case are being closely watched, but some states are taking their cues from another case the court tackled this term around a Texas abortion ban. A Texas law that banned abortions after six weeks and created a bounty-hunter scheme to round up anyone who assisted in violations of the ban has spurred copycats. While the court advanced a narrow challenge to the ban, it also allowed the law to stay in place as the case pushed ahead. The Texas Supreme Court then squashed the narrow grounds on which the court said the case could proceed. 

So while the justices’ official ruling said a challenge to the controversial law could move forward, the reality on the ground is that Roe has been nullified in Texas for over six months. 

“The right to abortion doesn’t meaningfully exist for people in Texas right now and it hasn’t for six months,” Arons said. “To the extent states are able to copy that tactic and the Supreme Court continues to turn away and ignore it, that is going to be the case for greater and greater numbers of people throughout this country.” 

Justice Sonia Sotomayor made this point clear in her dissent when the court refused to enforce its own ruling and send the case back to the district court to proceed. 

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote. “I will not stand by silently as a State continues to nullify this constitutional guarantee.” 

Abortions in Texas dropped by 60% in the first month after the ban took place, according to data from the Texas Health and Human Services Commission. States looking to ban abortions have not been blind to this. Oklahoma might be the first state to pass a copycat bill like Texas. 

Texas’ law has forced people to seek abortion care in neighboring states. Anti-abortion lawmakers have an answer for it, too. A new proposal from a Missouri lawmaker would use the same bounty-hunter scheme concocted by Texas to stop people from seeking abortions in neighboring states. 

“I think what we’re seeing with this type of bill from Missouri is that it really exposes what abortion opponents are after,” Arons said. 

She continued: “They don’t want anti-abortion laws to be limited to their own state. They want to eliminate access throughout the entire country, and so they are trying to exceed their jurisdiction and their authority by somehow having their own state laws apply to other states.” 

While the Missouri law would clearly be unconstitutional, so was the Texas law, and that has been in place for over six months despite the court hearing arguments and issuing a ruling in the case. 

“On its face, it is a blatantly unconstitutional law, but so is S.B. 8,” Langholz said. “What we are seeing are state legislators pushing and pushing to see how much they can get away with and given the current supermajority on the Supreme Court, I fear what the answer is because right now there is significant damage that could be done by states.” 

An analysis from the Center for Reproductive Rights found that if Roe was limited or overturned, abortion would be prohibited in 24 states and three territories. Another analysis from the Guttmacher Institute said the number could be as high as 26 states. Meanwhile, a majority of Americans — 59% — say abortion should be legal in all or most cases. Experts point to a lack of political accountability and gerrymandering as an explanation for why a majority opinion could be overrun by the minority. 

“All these states are deeply conservative and believe they are immune from political accountability,” said Lawrence Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law and faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law. “And the Court has been permissive in the face of hyper-partisan gerrymandering, which is another reason state legislators feel secure and not vulnerable to be removed from office.” 

When defending Mississippi’s ban in high court oral arguments, the state’s solicitor general, Scott Stewart, made the same argument for overturning Roe that reproductive advocates do for keeping it. In Stewart’s view, a few people — the nine justices on the Supreme Court — should not impose their views on an issue with no mention in the constitution. 

“Abortion is a hard issue,” Stewart said in December. “It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone, and when the constitution does not take sides on it, it belongs to the people.”

But the success of the minority imposing legislation against the majority’s wishes could point to bigger problems within American democracy. 

“The problem is that they have now rigged the system to such an extent that this is a canary in the coal mine about the state of our democracy and how frail and weak it is right now,” Arons said.

For the court, the decision to limit or overturn Roe could create the perception of the justices bending to political whims. During oral arguments in the Mississippi case, Sotomayor asked, “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts.” 

Experts say no. 

“I think that the answer is no,” Langholz said. “If we are going to have meaningful reproductive freedom in all corners of America, then the court has to be reformed, but until then what we are going to see is a state by state basis of people being able to build their lives around their access to reproductive freedom or not. So you’re going to see quite a huge shift in the way that we order society, to be frank, and I think that that speaks poorly of our current state of democracy.” 

If state legislatures can enact unconstitutional legislation not favored by the majority of Americans on abortion and get away with it, then other supposed constitutional rights are at risk as well if the minority in power disfavor them.

“Abortion is where it begins, that it’s certainly not where it ends,” Arons said. 

from Courthouse News

New Ninth Circuit Chief Judge Mary Murguia discusses her past and the court’s future

(CN) — As the Ninth Circuit emerges from two years of pandemic-induced isolation, its newest presiding judge told a group of roughly 60 lawyers that she is ready for the court to get back to doing business in-person.

“I think decorum is important, especially during this time. Going back to court during these challenging times of divisiveness in our country, I think it’s really important to do that,” said Chief U.S. Circuit Judge Mary Murguia, who took the helm from Judge Sidney Thomas on Dec. 1, 2021.

The court has been livestreaming arguments in all of its cases since 2014, so it was in a good position to pivot to full remote video when the Covid-19 pandemic hit. Murguia said Zoom video arguments were “not as good as in person, but effective for us to get through the pandemic.”

She said infrastructure challenges are a persistent concern, even as the court is considering making the option to appear remotely a permanent feature. “We weren’t set up for that prior to the pandemic and its taken quite a toll on our IT and audio/video people,” Murguia said. “They’ve done extraordinary work under the most challenging times, but we already needed updates and enhancements to our IT just to maintain what we have, and to try to advance that is going to be a big challenge.”

Murguia spoke remotely from her home in Phoenix as part of an hour-long interview series hosted by San Francisco’s Bar Association and moderated by Ben Feuer, chairman of the California Appellate Law Group LLP.

As chief judge of the nation’s largest federal appeals court, Murguia’s duties are largely administrative. But she also presides over all major cases that are heard en banc by a panel of 11 judges, usually convened to resolve a split in the circuit or when an issue is deemed to be exceptionally important.

Murguia was chosen by virtue of being the most senior judge on the court who hasn’t yet turned 65. She is the second woman and first Latina to hold the position.

“I realize that I’m not elected or appointed, but I also recognize it’s a tremendous responsibility and I”m very humbled by it, and I hope to do the best job I can to lead the court,” she said.

She said her seven-year term will also focus on stamping out workplace harassment in the federal judiciary. The court faced a reckoning on that front after sexual harassment allegations forced former chief judge Alex Kozinski to take an early retirement. U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee who recently announced she would be taking senior status, led a committee that made recommendations on how the judiciary could combat harassment and investigate complaints.

Its work culminated in changes to how the court resolves workplace disputes and the hiring of a workplace relations director, which Murguia called “very significant.”

“We’ve made extraordinary strides and we’re proud of the reforms that have been put in place and we want to continue that,” Murguia said. “We can’t just have tolerance for judges’ inappropriate behavior which includes sexual harassment,”

Clinton appointed Murguia, 61, to the federal court for the District of Arizona in 2000. President Barack Obama appointed her to the Ninth Circuit in 2010.

She began her career as a prosecutor in her hometown of Kansas City, Kansas, after earning two bachelor’s degrees and her law degree from the University of Kansas.

“It was a remarkable experience. It was a small office, but as a result you are given a lot of responsibility early on and a lot of autonomy in how to conduct your cases and I was given a lot of cases right off the bat. The growth for me as a lawyer in those five years was extraordinary. I just learned so much.”

After five years in Kansas City, she took a job as a federal prosecutor in Phoenix. There she caught the eye of senators John Kyl and John McCain, who were looking to fill a vacancy on the federal bench.

“There were a lot of good lawyers in Arizona and I thought they would be good judges. I never thought it would be me,” she said.

It was a groundbreaking career path for a girl who grew up in 1960’s Kansas, one of seven children raised in a working-class, Spanish-speaking neighborhood. Her mother immigrated from Michoacán, Mexico, and her father, who worked at the local steel plant, was born in Oklahoma but returned to his hometown in Michoacán during the Great Depression.

“A lot of the kids in my neighborhood, their fathers either worked for the railroad, the steel company, or one of the meatpacking companies,” she said. “It was very much a working class neighborhood.”

Her parents instilled a love of books and education in all seven of their children, nearly all of whom went on to graduate from college. Her brother Carlos is a former federal judge and her twin sister Janet is president of the civil rights organization UnidosUS, formerly the National Council of La Raza.

“The example they set of hard work and love of their community and their neighbors and also just a really strong worth ethic I think were really key. Also because they were not able to pursue education — either one of them — their comments on how important education was flowed down to us, and we were able to appreciate how important an education was,” Murguia said.

Murguia said that while her judicial decisions are guided by the law, her working class background also plays a role in her approach to a case.

“It’s part of who you are and how you process the law and the facts. We all probably do a little of that in cases we review. It’s hard to divorce your upbringing, your background, who you are, the experiences you’ve had, but obviously what’s driving the result is the law and applying it to the facts,” she said. “But I wouldn’t say we do this in a sterilized way. It’s part of what makes our court system unique.”

from Courthouse News

Molson Coors CEO says rebranding aimed at competitor, not Stone Brewing

SAN DIEGO (CN) — In 2016, the company then known as MillerCoors was losing sales of its economy beer Keystone Light at twice the rate of its competitors. Bold action to stop the hemorrhage was required, a consultant group told the company.

So it rebranded Keystone Light. The marketing campaign sought to take back sales from its competitors in the economy beer market including Natural Light, which is sold by Anheuser-Busch.

“I was concerned we were going to lose shelf space because all our economy brands were, frankly, underperforming our competitors,” CEO Gavin Hattersley said during questioning Tuesday in the second day of a trademark trial.

Hattersley’s testimony deflates arguments made by San Diego-based craft brewer Stone Brewing in its trademark case claiming MillerCoors — now known as Molson Coors following a 2019 name change by its parent company — rebranded Keystone to steal its customers or would-be customers.

In its 2018 lawsuit, Stone Brewing claimed MillerCoors rebranded Keystone Light in April 2017, separating “key” from “stone” to emphasize the word “stone” and make it appear the light beer was associated with the IPA craft beer maker.

Stone Brewing claims it has lost hundreds of millions of dollars in sales in the five years since.

But during his opening arguments Tuesday morning, MillerCoors attorney John Bunge noted a “segmentation in the beer market” meant his client was not competing in the same arena as Stone Brewing.

“We’re not competing against an IPA from San Diego,” Bunge said, adding: “They make a great beer, I’m not here to tell you otherwise, but those aren’t our competitors, our competitors are those who make economy beers like Anheuser-Busch.”

Bunge said documents shown during the trial would confirm MillerCoors’ strategy was to compete directly with Anheuser-Busch, not Stone Brewing.

He showed examples of how another economy beer — Bud Light — had changed its packaging over the years, as economy beers tried to differentiate themselves while in the “sea of sameness” due to their similar look.

Bunge also said graphs shown by Stone Brewing’s attorney Noah Hagey during his opening statement Monday showed Stone Brewing did not suffer immediate sales loses after MillerCoors rebranded Keystone.

Rather, a decline in sales started in 2019 and coincided with an industry-wide slowdown in the craft beer market which had become oversaturated after Stone Brewing first came on the scene in 1996, Bunge said.

Stone also closed several tasting rooms and facilities — including international businesses in Berlin, Germany, and Shanghai, China — as well as a tasting room in Napa. The company lost millions of dollars in the process, Bunge said.

“That’s too bad — and I’m not being facetious — but it’s [the losses] not the result of a budget beer changing its packaging from this to this,” Bunge said while holding up two Keystone Light cartons.

“We sell our beer in places like Oklahoma, not Berlin and not Shanghai,” he added. “We weren’t competing in Napa Valley, you’re not going to find a tasting room for Keystone Light in Napa Valley.”

The two beers are also sold in different markets with up to 40% of Stone’s beers sold in restaurants and bars and 98% of Keystone Light cartons sold in grocery and convenience stores.

Stone also sells nearly half its beers in California while Keystone “didn’t have much success” in the state and sold less than 1% of its beer in the Golden State, Bunge said.

When questioned by Hagey on Tuesday, Hattersley said “premium” and “above-premium” beers sold by MillerCoors were more affected by craft beer sales than economy beers like Keystone Light.

As part of its strategy to recover its share in the market, MillerCoors hired Boston Consulting Group which advised Hattersley: “It takes little imagination to envision a future with MillerCoors in a dramatically weaker competitive position unless bold action is taken.”

In response, MillerCoors embarked on what Hattersley called a “three-legged stool strategy” to plug lost sales and acquired four craft beer companies.

Additional witnesses are expected to take the stand Wednesday.

from Courthouse News

New normal: Fence is up, National Guard on standby for State of Union

WASHINGTON (AP) — The fencing around the U.S. Capitol is back up for the president’s State of the Union address on Tuesday. Police cars with flashing lights are stationed at major intersections and highways. The U.S. National Guard is on standby.

It’s the new normal.

While there are no specific or credible threats related to President Joe Biden’s speech, law enforcement officials are taking no chances following the events of Jan. 6, 2021, when a violent mob caught the District of Columbia by surprise and successfully stormed the U.S. Capitol, briefly disrupting the certification of Biden’s 2020 presidential victory.

Since then, the U.S. Capitol Police, charged with protecting lawmakers and anyone else in and around the Capitol, has beefed up security for planned protests in the area. And this time, officials are also preparing for trucker convoys that are planning protests against pandemic restrictions beginning this week, though officials aren’t concerned about serious security issues with the possible protests.

Modeled after recent trucker protests in Canada, separate truck convoys have been planned through online forums. Many have different starting points, departure dates and routes, though some may arrive in time for the State of the Union address. Others may arrive afterward.

At least two of the announced trucker convoys have fizzled due to to a lack of participation. But the largest, known as the People’s Convoy, had reached Oklahoma and was heading east on Monday with the intention of reaching the capital by Saturday, March 5.

The State of the Union address is designated as a “national special security event,” which clears the way for communication, funding and preparation between multiple agencies in Washington, including the Capitol Police, Pentagon, Homeland Security and District-area police. Other such events are the Super Bowl and the Democratic and Republican National Conventions. The U.S. Secret Service is in charge of the event.

The event takes months to plan and officials begin discussing how to improve security as soon as the previous year’s event ends. Law enforcement officials never go into too much detail so would-be attackers aren’t tipped off. But law enforcement officials always take into account recent events — from the insurrection to trucker protests and other free speech demonstrations.

This work includes enhanced intelligence sharing and operational planning, a Critical Incident Response Plan for the U.S. Capitol, and a regional security assessment. Police in the nation’s capital have mobilized additional officers and put the department’s civil disturbance unit on alert for at least the next week, two law enforcement officials told the AP. The officials could not publicly discuss details of the preparations and spoke on condition of anonymity.

Investigators have been monitoring online chatter, which includes an array of general threats against elected officials but there are no specific or credible threats against the event, the officials said.

U.S. Capitol Police Chief Thomas Manger said Sunday the fencing is being erected around the Capitol grounds “out of an abundance of caution.”

The fence had been a stark symbol of the fear that many in the Capitol felt after the Jan. 6 mob pushed its way past overwhelmed police officers, broke through windows and doors and ransacked the Capitol. It remained up for several months, a reminder of how divided the nation was, and how much work Biden had before him in trying to repair the damage.

The fencing greatly disrupted the daily lives of residents living near the Capitol, and Del. Eleanor Holmes Norton, Washington’s non-voting delegate in the House of Representatives, has said she doesn’t want the fence to stay up indefinitely this time.

“I will ensure that the fencing comes down as soon as possible to restore freedom of movement for District of Columbia residents and the general public,” Norton said in a statement last week.

Since the fence first came up and went down, it’s been re-installed once, briefly, for a rally in September that was organized to support people who remained jailed in connection with the insurrection. Law enforcement officers and members of the media vastly outnumbered the protesters and only a few incidents were reported. But Manger and other law enforcement officials said they’d rather take heat for being over-prepared than relive the nightmare of being vastly outnumbered by a violent mob.

Manger said Capitol Police have also requested additional assistance from outside law enforcement agencies before Tuesday’s address, in addition to the request for help from the National Guard.

Metropolitan Police Department Chief Robert Contee said Monday that his department is closely monitoring the shifting information and would be devoting additional policing in a rolling state of heightened alert over the next few weeks.

“We regularly handle peaceful demonstrations and welcome all to the nation’s capital to exercise their First Amendment rights,” Contee said. But he warned that the multiple security departments were “prepared to take swift law-enforcement actions for violations of our local and federal laws, if necessary.”

___

By COLLEEN LONG and MICHAEL BALSAMO Associated Press

Associated Press writer Ashraf Khalil contributed to this report.

from Courthouse News

J&J, distributors finalize $26B landmark opioid settlement

CAMDEN, N.J. (AP) — Drugmaker Johnson & Johnson and three major distributors finalized nationwide settlements over their role in the opioid addiction crisis Friday, an announcement that clears the way for $26 billion to flow to nearly every state and local government in the U.S.

Taken together, the settlements are the largest to date among the many opioid-related cases that have been playing out across the country. They’re expected to provide a significant boost to efforts aimed at reversing the crisis in places that have been devastated by it, including many parts of rural America.

Johnson & Johnson, AmerisourceBergen, Cardinal Health and McKesson announced the settlement plan last year, but the deal was contingent on getting participation from a critical mass of state and local governments.

Friday was the deadline for the companies to announce whether they felt enough governments had committed to participate in the settlement and relinquish the right to sue. The four companies notified lawyers for the governments in the case that their thresholds were met, meaning money could start flowing to communities by April.

“We’re never going to have enough money to immediately cure this problem,” said Joe Rice, one of the lead lawyers who represented local governments in the litigation that led to the settlement. “What we’re trying to do is give a lot of small communities a chance to try to change some of their problems.”

While none of the settlement money will go directly to victims of opioid addiction or their survivors, the vast majority of it is required to be used to deal with the epidemic. The need for the funding runs deep.

Kathleen Noonan, CEO of the Camden Coalition of Healthcare Providers, said a portion of the settlement money should be used to provide housing to people with addictions who are homeless.

“We have clients who have a hard time staying clean to make it in a shelter,” she said. “We would like to stabilize them so we can help them recover.”

Dan Keashen, a spokesman for Camden County government, said officials are thinking about using settlement money for a public education campaign to warn about the dangers of fentanyl. They also want to send more drug counselors into the streets, put additional social workers in municipal courts and pay for anti-addiction medications in the county jail.

Officials across the country are considering pumping the money into similar priorities.

California Gov. Gavin Newsom’s proposed budget calls for using $50 million of the state’s expected $86 million share this year for youth opioid education and to train treatment providers, improve data collection and distribute naloxone, a drug that reverses overdoses.

In Florida’s Broward County, home to Fort Lauderdale, the number of beds in a county-run detoxification facility could be expanded from 50 to 70 or 75, said Danielle Wang French, a lawyer for the county.

“It’s not enough, but it’s a good start,” she said of the settlement.

With fatal overdoses continuing to rage across the U.S., largely because of the spread of fentanyl and other illicitly produced synthetic opioids, public health experts are urging governments to use the money to ensure access to drug treatment for people with addictions. They also emphasize the need to fund programs that are proven to work, collect data on their efforts and launch prevention efforts aimed at young people, all while focusing on racial equity.

“It shouldn’t be: ready, set spend,” said Joshua Sharfstein, a former secretary of the Maryland Department of Health who is now a vice dean of public health at Johns Hopkins University. “It should be: think, strategize, spend.”

In a separate deal that also is included in the $26 billion, the four companies reached a $590 million settlement with the nation’s federally recognized Native American tribes. About $2 billion is being set aside for fees and expenses for the lawyers who have spent years working on the case.

New Brunswick, New Jersey-based Johnson & Johnson has nine years to pay its $5 billion share. The distributors — Conshohocken, Pennsylvania-based AmerisourceBergen; Columbus, Ohio-based Cardinal Health; and Irving, Texas-based McKesson — agreed to pay their combined $21 billion over 18 years. To reach the maximum amounts, states have to get local governments to sign on.

The settlements go beyond money. J&J, which has stopped selling prescription opioids, agrees not to resume. The distributors agree to send data to a clearinghouse intended to help flag when prescription drugs are diverted to the black market.

The companies are not admitting wrongdoing and are continuing to defend themselves against claims that they helped cause the opioid crisis that were brought by entities that are not involved in the settlements.

The requirement that most of the money be used to address the opioid crisis contrasts with a series of public health settlements in the 1990s with tobacco companies. In those cases, states used big chunks of the settlement money to fill budget gaps and fund other priorities.

The amount sent to each state under the opioid settlement depends on a formula that takes into account the severity of the crisis and the population. County and local governments also get shares of the money. A handful of states — Alabama, New Hampshire, Oklahoma, Washington and West Virginia — have not joined all or part of the settlement, mostly because they have their own deals or are preparing for trial.

In Camden, Lisa Davey, a recovery specialist for Maryville Addiction Treatment Center, was at a needle exchange this week handing out naloxone, a drug that reverses overdoses, and asking people if they wanted to start treatment.

Davey said she wants to see detoxification and treatment programs receive more funding to keep people in them for longer. As it is, she said, users can detox and be back out on the streets in search of drugs within days.

“They need more time to work their recovery,” she said.

A man picking up clean needles who asked to be identified only as Anthony P. said he was 46 and had struggled with addiction since he was a teenager. He said he’d like to see an effort to cut off fentanyl and related synthetic opioids that are driving overdose death rates from the drug supply.

“Fentanyl’s got to go,” he said.

Martha Chavis, president and CEO of Camden Area Health Education Center, which runs the needle exchange, said one need is offering services like hers in more places. Now, users from far-flung suburbs travel into Camden to get clean needles and kits to test their drugs for fentanyl.

The settlement with J&J and the three distributors marks a major step toward resolving the vast constellation of lawsuits in the U.S. over liability for an epidemic that has been linked to the deaths of more than 500,000 Americans over the past two decades.

Other companies, including business consultant McKinsey and drugmakers Endo, Mallinckrodt and Teva, have reached national settlements or a series of local ones. OxyContin maker Purdue Pharma and a group of states are in mediation through U.S. Bankruptcy Court to try to reach a nationwide settlement.

The crisis has deepened during the coronavirus pandemic, with U.S. opioid-related deaths reaching a high of more than 76,000 in the 12 months that ended in April 2021, largely because of the spread of fentanyl and other lab-made drugs. A recent report from a commission by The Lancet medical journal projected that 1.2 million Americans could die of opioid overdose between 2020 and 2029 without policy changes.

John F. Kelly, a professor of psychiatry in addiction medicine at Harvard Medical School, said he wants to see money from the settlements go not just for treatment, recovery and support efforts but also to build systems designed to prevent this sort of epidemic from happening again.

“Some kind of national board or organization could be set up … to prevent this kind of lack of oversight from happening again — where industry is allowed to create a public health hazard,” he said.

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By GEOFF MULVIHILL Associated Press

from Courthouse News