NJ Gov. Phil Murphy Names First Black Woman To State Supreme Court

New Jersey Gov. Phil Murphy has named attorney Fabiana Pierre-Louis to the state Supreme Court on Friday, making her the first black woman to sit on the state’s highest court.

An NBC News report Friday states Pierre-Louis, 39, will succeed Walter Timpone, who will reach the mandatory retirement age of 70 in the fall. Pierre-Louis is a Cherry Hill-based partner specializing in white-collar crime and government investigations in the firm of Montgomery McCracken.

“Many years ago my parents came to the United States from Haiti with not much more than the clothes on their backs and the American dream in their hearts,” Pierre-Louis told NBC. “I think they have achieved that dream beyond measure because my life is certainly not representative of the traditional trajectory of someone who would one day be nominated to the Supreme Court of New Jersey.”

Pierre-Louis also spent nine years in the U.S. Attorney’s Office in New Jersey according to her page on Montgomery McCraken’s website. Pierre-Louis worked as a federal prosecutor, responsible for supervising all aspects of criminal matters handled by the Camden Office.

Pierre-Louis has worked on a litany of cases including criminal trials, investigations, and prosecutions of large-scale mail and wire fraud offenses, healthcare and government fraud matters, and narcotics, firearms, and violent crime offenses.

Murphy said Pierre-Louis will carry the legacy of John Wallace, the last black judge on the state supreme court. Pierre-Louis knows Wallace well as she clerked for him previously. Murphy said it still bothers him that Wallace was not renominated when his first term expired in 2010—the first time that had happened under the state’s current constitution.

Murphy tweeted Friday that he was honored to appoint Pierre-Louis to the position.

“Her humility, empathy, and character will serve the people of New Jersey well,” Murphy said.

“Across this country, there are 33 states which do not have a woman of color on their highest court,” said Lt. Gov. Sheila Oliver in a press release. “I cannot wait to see New Jersey leave that list with Fabiana’s confirmation to the Supreme Court.”

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Protesting during a pandemic is a risk. Many have decided it’s worth it.

Demonstrators take part in a protest in Chicago, Illinois, on June 1. | Chris Dilts/Xinhua News Agency/Getty Images

The tense reality of protesting during a pandemic, explained.

As someone with asthma, Meredith Blake was very worried about getting sick in the pandemic. With Covid-19 spreading across America, she stayed inside her home in Boston for 12 weeks, isolating from others as much as possible.

Her self-quarantine ended on June 1. After George Floyd’s killing at the hands of police in Minneapolis, she was compelled to march in the streets with a large crowd of other Bostonians, in close proximity. She wore a face mask and used lots of hand sanitizer wipes.

“I was definitely a little nervous,” about catching Covid-19 in the crowd, says Blake, a researcher at the Harvard Humanitarian Initiative. But showing up and speaking out was more important to her in this moment: “I have a vested interest in the protection of black and brown people, not only professionally, but personally,” she says. She felt like she could no longer prioritize her personal safety from the coronavirus.

Blake works with public health professionals and ER doctors every day, and knew joining a crowd was dangerous — for both herself and the community. But she made a careful calculation: Covid-19 is a huge risk, and to her, the protests were worth it.

On the right, some commentators have accused public health experts of hypocrisy around the protests, for endorsing them after months of telling people to stay home to prevent the spread of the coronavirus.

Some of those commentators asked: Is it fair if the aggrieved can’t hold funerals for loved ones while others are marching en masse? Why should businesses stay closed when several high-profile experts say the protests are worthwhile? Author J.D. Vance, for one, fears public health expert endorsements of the protest will erode trust in expert opinion. “I’m still amazed at how quickly the moral scolding ceased as soon as elite-favored protests began taking place,” Vance tweeted.

I’ve talked to several public health experts who support the protests — both black and white — asking them what they wish people like Vance could accept.

Here’s what they say: Protesters are more afraid of doing nothing in the aftermath of George Floyd’s killing than the pandemic. And centuries of systemic racism, lifetimes of discrimination, and years of watching black people die needlessly drive those fears.

“It is hard for me as a public health professional, who also knows my history, to blanketly tell someone to take all these people off the street when they are protesting against 400 years of a different pandemic that happens to not be infectious,” Zinzi Bailey, a social epidemiologist at the University of Miami, says. “It’s not something that potentially a white person is going to catch. Right?”

People are going out into the streets because they feel like their lives depend on it, because one in every 1,000 black men could die at the hands of police. Because they fear an officer of the state will kill them for something petty, like being suspected of possessing a counterfeit $20 bill, as Floyd did. They are going out because of the systemic reasons Covid-19 has harmed black people in higher numbers, and because black people are more likely to suffer the worst course of illness.

“People are in the streets because they have to be,” Rhea Boyd, a pediatrician who works in California’s Bay Area, says. “Because that is how dire things are. Even in the setting of a pandemic, where it seems like being out there risks your life. There are so many risks on your life. You’ve got to be out there to try to protect it. People need, and black folks in particular, need a ton of changes to happen immediately.”

Missing a funeral is painful. Keeping a business closed is painful and causes real harm. No one doubts that. The question is: Can you live with the consequences?

And what if on the other hand, you feel like your life, and the lives of people you care for, depends on protesting?

Make no mistake: Protesting during a pandemic can spread Covid-19

Many protesters are following public health advice while demonstrating: wearing masks, distancing, using hand sanitizer, and getting tested for Covid-19. But it also must be said that there’s no perfectly safe way to demonstrate in huge gatherings during a pandemic, and the threat of new waves of Covid-19 is still very real.

New cases of Covid-19, nationally, have been declining from a peak, but the national numbers obscure smaller outbreaks that are on the rise in some areas. Things may be looking better, but there are still around 20,000 new Covid-19 cases each day. And that’s just the people who are getting tested. According to Ashish Jha, a professor of global health at Harvard, the real number of new daily infections in the US may be closer to 125,000.

The protests are also occurring at a deeply uncertain time during the pandemic. The overall situation appears to be improving, but a new wave could be brewing under the surface as states reopen. The incubation period of the virus, combined with limited resources for testing, means we can’t have real-time knowledge of the state of the outbreak.

No one knows what’s going to happen next, or how big the next wave might be. There are so many unknowns about how the virus will spread in a country with a patchwork system of response and varying levels of adherence to social distancing and mask-wearing.

“I have a vested interest in the protection of black and brown people, not only professionally but personally”

That said, we know the virus’s deadly potential is still great. We’re still looking at dealing with Covid-19 on a timescale of months, if not years.

We also know that mass gatherings are risky, even if people take precautions. Yes, it’s safer that the protests are outside (there are very few documented cases of outdoor coronavirus transmission). Yes, it’s safer when people wear masks; it’s safer when people try to distance themselves from one another. But there’s no such thing as zero risk with this virus. And the math of exponential growth means it doesn’t take a big spark to create an outbreak that numbers in the thousands.

“I get very concerned, as do my colleagues in public health, when they see these kinds of crowds,” Dr. Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases and a top White House adviser on the pandemic, told WTOP on Friday. “There certainly is a risk. I can say that with confidence.”

It’s possible Covid-19 will spread among those marching, shouting out respiratory droplet-laden cries for justice. It’s also possible Covid-19 will spread due to the law enforcement response, throwing tear gas into crowds, making people cough, forcing them into smaller and smaller spaces, and then arresting them and confining them in small jail cells. It’s possible the infection will spread both ways.

This is not lost on the public health experts, nor is the fact that the next wave of cases may disproportionately impact the minority communities protesting. They’re more likely to get sick, more likely to be labeled essential workers if new lockdown orders come.

“I definitely worry about the potential spread of SARS-CoV-2 and how the protests that are going on may contribute to a second wave of Covid-19, which would be disproportionately affecting the black community again,” Jaime Slaughter-Acey, an epidemiologist at the University of Minnesota, says. “Being a black epidemiologist ... the way that I see this is that those who are out there protesting are saying that the life of George Floyd, that black lives, matter, and that they’re prioritizing black life over their own individual life. And there is nothing more unselfish than that.”

Why some public health experts say the protests are “essential”

Some journalists have smelled a whiff of hypocrisy in epidemiologists endorsing the protests. These same public health experts did not support anti-lockdown protesters who were arguing for reopening the economy. They decried mass gatherings of people in a large swimming pool. The argument is that health experts have been changing their recommendations, now that there’s a protest that aligns with their social justice politics.

“One thing I’ve been telling people is that the guidance hasn’t really changed from a public health perspective,” Eleanor Murray, a Boston University epidemiologist, says. “It’s always been ‘stay home as much as possible, except for essential activities.’ But the definition of essential is not a scientific one — it’s a sociological one. ... Protesting police violence is an essential activity for a lot of people.”

Elijah Nouvelage/Getty Images

A woman with “I can’t breathe” written on her neck at a demonstration in Atlanta, Georgia, on May 31.

(It’s not surprising a lot of epidemiologists feel this way. When not dealing with a pandemic, they very often study societal inequities and the social determinants of health. Because of this work, we now know a lot about systemic racism and its impacts on health.)

Alison Bateman-House, a medical ethicist at NYU, says we need to think carefully about the costs and benefits of each type of protest.

“Your desire for a haircut is not sufficient to counterbalance the potential of harm that you are imposing on others” during a pandemic, Bateman-House says. It’s also true that the stifling of the economy during the pandemic has made life worse for a lot of people. But opening the economy back up was never the only answer. The government could have been more generous in its support for people out of work.

Now think about the costs and benefits of the mass racial justice protests.

“For people of color and black folks, their cost of not doing something is a lot greater than potentially getting a virus,” says Aisha Langford, a health communications professor at NYU. “I could die as a black person in America — literally just living as a black person in America is a risk factor for dying, potentially at the hands of police, and potentially on national TV. And history has shown that a lot of times, people [the perpetrators] aren’t even brought to justice. So it’s almost like your life is discarded. If I’m quiet, and I do absolutely nothing, I could die because I exist.”

As Boyd put it in a recent American Medical Association panel, “Protest saves lives. The Black liberation movement, queer liberation movement, women’s liberation movement — all built on protest.”

If you believe the protests are essential, “then I would say your social priority is to do harm reduction,” Bateman-House says. For protesters, that means wearing masks and eye protection, avoiding shouting, keeping distance from others, and being tested for Covid-19 (if possible) after returning from the protests, and maintaining social distance in other aspects of life.

Law enforcement could do harm reduction too, as these crowds don’t appear to be going away. That means not using tear gas and not placing people in crowded holding cells, as we know confined indoor spaces are the greatest place of risk of all. In New York, Gothamist reports, hundreds of protesters were locked up for more than a day in cramped cells — a perfect place for the coronavirus to spread. BuzzFeed has estimated at least 11,000 have been arrested nationwide during the protests.

What’s worse: More people dying of Covid-19, or sustained systemic racism?

The debate about pandemic protests raises a question: What is the greater cost to society: exacerbating the spread of Covid-19 or not protesting for racial justice in this moment?

“I would say is that that is the wrong question to be asking, and that is almost a distraction,” Bailey says. “A lot of people are thinking on a very short time horizon. The protesters are not there just for themselves. They’re there for generations to come. They’re there for their children and grandchildren to live in a different society. Right? So I don’t I think that it is a distraction to try to quantify what that looks like.” She worries that people who are bringing up Covid-19 risks, are really just trying to silence the protest movement.

It’s difficult to make a direct comparison of the two threats, of racism, and of new Covid-19 cases.

Epidemiologists can model what happens when people get closer together during a pandemic. They can tell us Covid-19 is more likely to spread when people convene, that more infections and deaths may result. But they can’t easily model what happens to disparities in society, when a mass protest movement changes anti-racist attitudes for the better.

“For people of color and black folks, their cost of not doing something is a lot greater than potentially getting a virus”

The protest is fueled by the faith that it will be worth it: that forcing a reckoning on society will be enough to save more lives in the future. And not just saving lives but easing the burden of systemic racism at all levels in society.

“If there are places that immediately are divesting in their police force, I think that makes it worth it,” Boyd, the pediatrician, says. She mentions how Lego has pulled its marketing of police-themed playsets. “And I think that is huge — that there’s a cultural shift about how we think about policing, that it’s not a toy, that it’s a very lethal and dangerous system we’ve built that has racist implications in our society,” she says.

And already, the protests may have already had an impact on racial attitudes in America. Support for Black Lives Matter is at an all-time high, according to the survey company Civiqs.

Support for the #BlackLivesMatter movement is the highest it has ever been in over three years of polling @Civiqs. This weekend was the single most significant shift in Americans' racial attitudes since we began asking the question in April 2017.https://t.co/BP52L4Ao49 pic.twitter.com/il1ebBtxLG

— Drew Linzer (@DrewLinzer) June 3, 2020

What is the worth of that cultural change compared to the pandemic? What is the worth of all the Instagram posts I’ve been seeing, of white people sharing guides for other white people to talk to their families about systemic racism? What is the worth of this protest movement and its potential impact on the November elections? What is the worth of showing how law enforcement can confront peaceful protesters with brutal means on live television? Might all of this jolt society into taking the health and well-being of black people and minorities more seriously?

Already there have been some changes. Minneapolis is dismantling its police department and transforming it. Voter registrations are surging. But the larger cultural shifts are harder to quantify, harder to know how, if, and when they could make life better for black communities, and save lives.

This is the problem: How can we really compare the death and destruction of the pandemic with all that? They don’t operate in the same dimensions. Yes, both racism and the pandemic could lead to death. But comparing deaths to death feels off. Racism is so much more multidimensional, and harming in a baffling array of ways.

Just look at the pandemic and how it has disproportionately impacted black and minority communities. There are structural reasons for this.

Many racial and ethnic minorities, law professors Ruqaiijah Yearby and Seema Mohapatra explain, have been classified as “essential workers” and are unable to work from home, leave their job, or access paid sick leave. They live in denser housing and more often polluted communities than whites — a result of years of racist housing policy that puts them at greater risk during a pandemic. And when they do get sick, their access to health care is often limited (as is their ability to pay for it).

“Especially in the beginning of this pandemic, in order to get tested, you needed a referral in a lot of places from a primary care physician,” Mohapatra says. “And many people of color, because of where they live, and you can trace it back to redlining ... really don’t have access.” That’s just one example of how structural racism is a superseding problem that is made clear when a pandemic arrives.

In the face of the worst-case Covid-19 scenario, the protest movement shows there’s hope for a better America

It’s easy to think about the worst-case scenarios.

The protests could spread Covid-19, and since many protesters are black, it could exacerbate the toll on black communities. The protesters could embolden others to stop social distancing. The protests could continue to hurt the pandemic response; already some testing sites have closed amid the unrest.

If Covid-19 cases spike some weeks after the protests, we won’t immediately know why — was it the police tactics, the tear gas? Was it simply the crowds? Was it the jailing? Was it the general “reopening” of our economy that is occurring at the same time? Before and during the protests, states were reopening without adequate measures like testing and contact tracing in place. It’s possible that many locations were set up for a new wave of infections, protests or not.

In the absence of clear information, fingers will point. People will blame the new wave on whichever group they like the least. The discourse will grow more polarized. It’s possible the credibility of public health professionals will be strained, as conservatives blame them for giving the green light to the protests.

I’m scared about the pandemic. I’m scared about a new wave exploding. But as a white man of some privilege, I feel it’s not for me to judge if the protests are worth it.

There are real, deadly risks. But these protests aren’t about cowering in the fear of risks. They’re about hope for change. Hope is hard to quantify and hard to dismiss.

“It’s hope that this type of mass movement has the same impact of other civil rights actions,” Blake says. “I hope that policymakers, legislators, elected officials are paying attention to the calculated risk a lot of us are making, because it would be tragic, not only if there was a spike in Covid infections and deaths, but also if no policies were changed after this.”

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A reading list to understand police brutality in America

A protester holds up a sign showing a fist and reading ‘Black Lives Matter’ during a Black Lives Matter protest in front of the US Embassy on June 5, 2020, in Vienna, Austria. | Thomas Kronsteiner/Getty Images

Buy the books on this reading list at black-owned stores.

Over the past few weeks, police brutality has raged across America in response to nationwide protests against police brutality. Some people have been left searching for answers. Were the police always this bad? How can so many violent events possibly have happened? Should we just get rid of the police altogether? What would that even look like?

I’ve compiled a reading list of nonfiction books that can help you understand where we are right now, how we got here, and where we can go next. But I want to be clear: Reading the books below is not enough. We’re in a moment of national crisis, and reading is only helpful insofar as it informs your actions. Let these books be a starting point, not the only thing you do. Take action.

Also, please buy these books from black-owned bookstores. All the links I’ve provided below will take you to a black-owned bookstore whenever possible, and here’s a list of other black-owned bookstores where you can shop.

Books on the current state of America, racism, and the police

The New Jim Crow by Michelle Alexander

In one of the most influential books of the past 20 years, Alexander shows how the criminal justice system works to replicate the effects of Jim Crow laws and create a new racial caste system. This book laid the intellectual basis for the revitalized critique of America’s criminal justice system over the past decade and is essential reading.

When Police Kill by Franklin Zimring

Law professor Franklin Zimring goes deep into the numbers to figure out how often the police kill civilians, why, and who they are killing. This book is a data-driven snapshot of the situation on the ground circa 2018.

Invisible No More: Police Violence Against Black Women and Women of Color by Andrea J. Ritchie

While sexual violence committed by police is the second-most frequently reported form of police misconduct, it is not the second-most talked about. Police misconduct attorney Andrea J. Ritchie aims to change that in this book, which looks at the often-ignored ways in which police can prey on women from vulnerable communities.

The Black and the Blue: A Cop Reveals the Crimes, Racism, and Injustice in America’s Law Enforcement by Matthew Horace and Ron Harris

Matthew Horace, a black man who spent 28 years in law enforcement, explains the culture of racism deeply embedded in America’s police departments. Horace’s first-person account is supplemented with reporting by journalist Ron Harris, but what’s most indelible in this book is Horace’s account of finding himself with a gun to his head and pinned to the ground by a white officer.

A Good Time for the Truth: Race in Minnesota, edited by Sun Yung Shin

In this provocative anthology, 16 writers explain what it’s like to live as a person of color in Minnesota, the state where George Floyd was killed by police.

White Fragility: Why It’s So Hard for White People to Talk About Racism by Robin DiAngelo

Robin DiAngelo is a sociologist, and she also leads workshops in diversity training. In White Fragility, she examines the enormous defensiveness white people exhibit when talking about race, why it exists, and how to dismantle it.

Books on how we got here

Stamped from the Beginning by Ibram X. Kendi

In this National Book Award winner, Kendi traces the development of racist ideas in American thought from the colonial era through to the present. He convincingly argues that American racism was developed in order to justify structural inequalities that were already in place, and that they were most often not the result of ignorance or thoughtlessness from the uneducated, but the product of deep thought from some of America’s most beloved intellectuals.

The Counter-Revolution of 1776 by Gerald Horne

Historian Gerald Horne argues that the American revolution was prompted less by grand ideals about liberty and equality and universal truths than it was by fears that the elite of the colony might face a slave revolt like those sweeping the Caribbean and that the central freedom for which our Founding Fathers fought was the freedom to own other people. Horne is writing more for fellow historians than for lay readers, but the force and clarity of his argument come through regardless.

Black Power: The Politics of Liberation in America by Stokely Carmichael and Charles V. Hamilton

This landmark book from 1967 features the first known use of the phrase “institutional racism.” Civil rights organizer Stokely Carmichael (later known as Kwame Ture) and political scientist Charles V. Hamilton examine the roots of racism in America and why reform is so difficult. Coming in for particular criticism are the black civil rights movement’s ostensible allies among liberal groups, whom Carmichael and Hamilton argue are complacent and invested in the status quo.

Lynching: Violence, Rhetoric, and American Identity by Ersula J. Ore

Ersula J. Ore, a professor of ethics, African American studies, and rhetoric, traces the history of lynching as a means of civic engagement for white people. She argues that for white people, lynching is a way of declaring what they believe America to be: a nation of white people, from whom black people are to be excluded by any means necessary.

Fight the Power: African Americans and the Long History of Police Brutality in New York City by Clarence Taylor

Historian Clarence Taylor traces the history of police brutality in New York City, from the so-called Harlem Riots of the 1930s through to the de Blasio administration of the present day. He also chronicles the stories of those who tried to fight back against police violence toward communities of color, including both their defeats and their victories.

From #BlackLivesMatter to Black Liberation by Keeanga-Yamahtta Taylor

Academic Keeanga-Yamahtta Taylor places the #BlackLivesMatter movement in its historical context, tracing the lines from early American racism to contemporary mass incarceration and police violence. Cornel West called this book “the best analysis we have of the #BlackLivesMatter moment of the long struggle for freedom in America.”

Books on where we can go from here

How to Be an Antiracist by Ibram X. Kendi

Kendi’s memoir asks us not to stay trapped by the system in which we currently live, but to imagine what an equitable anti-racist society would actually look like. Most importantly, he asks us to actively work toward building it.

The End of Policing by Alex S. Vitale

“The problem is not police training, police diversity, or police methods,” writes sociologist Alex S. Vitale. “The problem is policing itself.” Vitale argues that the best way to reduce crime, spending, and injustice and to increase public safety is to abolish the police and create new alternatives.

Beyond Survival: Strategies and Survival from the Transformative Justice Movement edited by Ejeris Dixon and Leah Lakshmi Piepezna-Samarasinha

Our current criminal justice system and its focus on the police is not the only system societies have ever used to fight against violence and injustice. This anthology by social activists lays out strategies from the transformative justice movement to resolve violence on a community-based level and to prevent it before it ever begins.

Additional resources:

• JStor Daily has a reading list of accessible scholarly articles on institutional racism in America.
• The Association of University Presses has set up a storefront on Bookshop.org featuring books on equity, justice, and inclusion.
• Haymarket Books has a list of books on mass incarceration and policing.
• Electric Literature has a reading list on the police abolition movement.
• This Google Drive is a list of anti-racist resources for white people.
• Noteworthy: The Journal Blog has a list of children’s books that can help you talk to kids about racism.

Now act

Now that you know the background, it’s time to take action. To get you started, here are articles at The Cut and Lifehacker that will outline ways to donate your time, skills, or money to support the protesters and fight against police brutality and systemic racism.

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Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.

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The WHO now recommends universal mask-wearing

A woman wearing a face mask walks past a wall with drawings in a street of Havana, Cuba on May 13, 2020. Cuba is one of several countries that has made masks mandatory. | Amil Lage/AFP via Getty Images

The general public should wear cloth masks in public spaces where physical distancing is impossible, the agency says.

The World Health Organization (WHO) on Friday announced changes to its guidelines on who should wear a mask during the Covid-19 pandemic and where they should wear it.

The new guidance recommends that the general public wear cloth masks made from at least three layers of fabric “on public transport, in shops, or in other confined or crowded environments.” It also says people over 60 or with preexisting conditions should wear medical masks in areas where there’s community transmission of the coronavirus and physical distancing is impossible, and that all workers in clinical settings should wear medical masks in area with widespread transmission.

It’s a major update to the agency’s April 6 recommendations, which said that members of the general public “only need to wear a mask if you are taking care of a person with Covid-19” or “if you are coughing or sneezing.” And it’s important advice for countries around the world battling the virus, especially those in South America, the Middle East, and Africa where the rate of Covid-19 transmission appears to be accelerating.

At a WHO press conference on June 3, Michael Ryan, an infectious disease epidemiologist and the executive director of the WHO’s Health Emergencies Programme, said WHO still believes that masks should primarily be used “for purposes of source control — in other words, for people who may be infectious, reducing the chances that they will infect someone else.”

And on Friday, WHO Director-General Tedros Adhanom Ghebreyesus offered a few words of warning as part of the announcement: “Masks can also create a false sense of security, leading people to neglect measures, such as hand hygiene and physical distancing. I cannot say this clearly enough: Masks alone will not protect you from Covid-19.”

But the changes finally bring the WHO in line with many countries around the world that have made masks mandatory in crowded public spaces, including Cuba, France, Cameroon, Vietnam, Slovakia, and Honduras. While it has not made masks a requirement, the US Centers for Disease Control and Prevention (CDC) has since April 3 suggested “wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain.”

Many health experts have wondered why it’s taken this long for the WHO to update its mask guidelines, given the accumulation of evidence that they may be helpful and have few downsides.

Eric Topol, a research methods expert and director of the Scripps Research Translational Institute, calls WHO’s delay “preposterous.” He adds, “I have great respect for the World Health Organization — but they got the mask story all wrong, and we have lost people because of it.” Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University, agrees, saying, “Everyone should be wearing a mask.”

Here’s what the research suggests and why experts think WHO has now revised its guidelines.

AFP via Getty Images

People in face masks shop for plants and flowers in Hong Kong on March 22, 2020. In April, researchers from the University of Hong Kong and the University of Maryland found that masks stopped sick people from spreading Covid-19 in Hong Kong.

Why wear a mask?

The WHO didn’t cite any particular research for its dramatic change, noting only that it “developed this guidance through a careful review of all available evidence and extensive consultation with international experts and civil society groups.”

But there have been a number of recent studies that experts point to as the best evidence for mask use in the general public to reduce Covid-19 transmission. And a growing number of doctors, scientists, and public health experts have been calling for universal masking in indoor public spaces and crowded outdoor spaces.

One meta-review published in Lancet waded through 172 studies on Covid-19, SARS, and MERS, from 16 countries and six continents. Its authors determined that masks — as well as physical distancing and eye protection — helped protect against Covid-19.

The studies reviewed evidence both in health care and non-health care settings and then adjusted the data so they could be directly compared. The researchers found that your risk of infection when wearing a mask was 14 percent less than if you weren’t wearing a mask, although N95 masks “might be associated with a larger reduction in risk” than surgical or cloth masks.

Other literature reviews have not been as favorable. Paul Hunter, professor in medicine at the University of East Anglia and one of the advisory bodies on infection prevention of Covid-19, coauthored one such preprint review in early April. “In evidence-based medicine, randomized-controlled trials are supposed to trump observational studies,” he says, “And randomized-controlled trials have all been pretty much negative on face masks in the community.” The Lancet piece, he notes, gives more consideration to observational studies with surgical masks.

A few recent observational studies on mask use by the public in this pandemic, however, support general mask usage to prevent the spread of Covid-19. One from Hong Kong concluded, “mass masking in the community is one of the key measures that controls transmission during the outbreak in Hong Kong and China.” Another concluded that if 80 percent of a population were to wear masks, the number of Covid-19 infections would drop by a 12th, based on observations from several Asian countries where mask-wearing is common.

There’s been some debate over the efficacy of homemade cloth masks and surgical masks (especially compared to N95s masks, which have more evidence behind them) for the general public. But one recent article, published in the Annals of Internal Medicine, found that even cloth masks block some viral particles from escaping.

The general consensus is that masks are better at keeping your viral particles from spreading to others than keeping someone else’s from spreading to you. Catherine Clase, the lead author of the Annals of Internal Medicine piece, says that one study she reviewed found even a single layer of cotton tea towel tested against a virus aerosol reduced transmission of virus by 72 percent. “One thing to remember,” she says, “is that a mask doesn’t need to be perfect” to bring down the average number of people being infected by one sick person. “It just has to reduce the probability of transmission to some degree.”

William Schaffner, an infectious disease specialist at Vanderbilt University Medical Center, notes that previous data on masks and viruses came out of the SARS and MERS epidemics, which involved viruses that weren’t as transmissible. “Masks were thought of then as more personal protection as opposed to community protection,” he said, helping explain why masks weren’t widely regarded as particularly effective.

But with Covid-19, the rate of asymptomatic patients may be as high as 40 percent, requiring a shift in thinking about masks from protecting the wearer to protecting the community. And so Clase concludes that while cloth masks may not protect you from inhaling someone else’s germs, “the evidence that they reduce contamination [from sick people] of air and surfaces is convincing, and should suffice to inform policy decisions on their use in this pandemic.”

Clase adds, “The pandemic is not going particularly well. So this is probably worth employing now and doing the additional research later.”

Apu Gomes/AFP/Getty Images

A family walks wearing masks in Downtown Los Angeles on March 22, 2020, during the coronavirus outbreak.

Why the WHO may have had trouble reaching consensus on universal masking

The WHO generally does very thorough reviews of evidence, as the whole world’s health rides on their recommendations. This may explain their delay in recommending the general public wear masks.

The agency used to largely base its decisions around expert advice, says Hunter. “They would get together a group, and they would use these experts to drive WHO guidelines.” But in 2007, a Lancet paper criticized the agency for not following evidence-based medicine, which prioritizes randomized controlled trials.

As a result, Hunter says, “WHO went through a major upheaval in its guideline development practices. Now, it has to base its recommendations on systematic reviews,” and each guideline development committees now have methodologists.

“I think [the delay] reflects a general principle often followed by scientists, which is not to change practice until the evidence is strong and definitive,” Trish Greenhalgh, a professor of primary care sciences at the University of Oxford, wrote in an email responding to questions. “Whilst many people (including me) believe that is already the case, some scientists on WHO committees have been waiting for additional evidence to strengthen the case.”

Greenhalgh argued in early April that it was time to apply the precautionary principle to pandemic response and that the public should wear masks “on the grounds that we have little to lose and potentially something to gain.”

But David Heymann, a professor of infectious disease epidemiology at the London School of Hygiene and Tropical Medicine and a member of WHO’s Strategic and Technical Advisory Group for Infectious Hazards (STAG-IH) advisory board, says the agency “is very cautious to only use evidence when we have it. We don’t make any precautionary measures if we don’t have any contributing evidence.”

Any guideline you make does an assessment of risk and benefit, and you want to get as much information as you can

STAG-IH itself was asked to look into the evidence for and against mask use in early May and compiled a report for the WHO that was made public on May 25. The finding “supports mask use by the general public in the community to decrease the risk of infection,” the WHO said in a statement to Vox, noting that in updating their guidance, they took the STAG-IH advice into consideration.

Cliff Lane, the clinical director at the National Institute of Allergies and Infectious Diseases at the National Institutes of Health and another member of STAG-IH, says the WHO is ”very good at trying to get a diverse set of opinions before making recommendations.” But he admits he doesn’t know why the WHO has timed its recommendations for masks the way it has.

He is one of many experts Vox interviewed who noted that it’s difficult to conduct a randomized, double-blind controlled study of mask use in the general public. Because of ethics and practicality, “much of the epidemiologic data on the impact is inferred,” he says. This magnifies a general problem he sees: “Any guideline you make does an assessment of risk and benefit, and you want to get as much information as you can.” For example, if wearing a mask provides a sense of false security and encourages people to stop social distancing, then consequences may not be worth it. “It’s not a trivial decision,” he says.

Heymann says the WHO’s delay in recommendation comes in part from needing to consider evidence from around the world. “WHO takes longer because there’s a need to obtain consensus from global experts and inform six regional offices.”

Hunter added that nation-states can make decisions based in part on politics or educated guesses. “But WHO cannot take political decisions like that. It has to try to get consensus opinion among scientists, because people look to WHO to make decisions on hard evidence wherever possible.”

As Heymann sees it, “WHO is just the gold standard. Countries many times are ahead of WHO — there’s no need for them to wait for WHO to make recommendations.”

Topol, on the other hand, says the best reason he can think of for the WHO not recommending everyone wear masks is because of the worry over a global shortage of masks, particularly in the US. Perhaps, he says, “They didn’t want to have masks maldistributed, because of the dire need for, and lack of, PPE for health care personnel.”

But, he adds, “That’s not the reason to say you don’t need masks — that’s the reason to say we desperately need to make masks.”

“The world needs the WHO — and it needs it now more than ever”

The WHO has been under a lot of scrutiny since the beginning of the pandemic. And it recently got worse: At the end of May, President Trump announced that the US would pull out of the WHO altogether, potentially withdrawing a significant portion of the agency’s funding.

But the WHO isn’t alone in being slow to suggest mask use. Countries like Venezuela made masks mandatory on March 14, and the Czech Republic made the move on March 18. But the US CDC also originally recommended against masks for the public, only changing its guidance to universal masking on April 3.

Richard Besser, president of the Robert Wood Johnson Foundation and former acting director of the CDC, explains that during an emergency, experts have to look at new information and evaluating decisions. He led the emergency planning and response at the CDC for four years, and says, “When guidance went up, it was always interim. Early on, what you don’t know always exceeds what you do know, and as you learn more, you make changes.”

Sometimes those changes are minor, and sometimes, as in the case of the CDC’s mask guidance, they are significant. “In order for that to make sense to the public, you need to have something that we’re lacking right now: direct communication,” Besser says. “That’s valuable because it engenders trust in settings of crisis, where there are things people should do to protect their health. They’re much more likely to do them if they trust the messenger.”

Unlike the CDC, which has been roundly criticized for its lack of press briefings, the WHO is still holding daily conference calls during the pandemic.

“The WHO, like the CDC, is far from perfect, and is flawed in many ways,” says Gostin. “Having worked with WHO for 30 years, I can say they can be maddeningly bureaucratic and unresponsive. But the world needs the WHO — and it needs it now more than ever.”

Lois Parshley is a freelance investigative journalist and the 2019-2020 Snedden Chair of Journalism at the University of Alaska Fairbanks. Follow her Covid-19 reporting on Twitter @loisparshley.

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Black Lives Matter sues Bill Barr for order that led to tear gas attack on peaceful protesters

Attorney General Bill Barr (second from right) walks through Lafayette Park in Washington, DC, during a demonstration on June 1, 2020. Shortly after this picture was taken, Barr personally ordered law enforcement to clear the area of protesters. | Joshua Roberts/Getty Images

The lawsuit faces an uphill battle in a judiciary controlled by Republicans.

The District of Columbia chapter of the Black Lives Matter movement, along with four individual protesters, filed a federal lawsuit Thursday against President Donald Trump, Attorney General Bill Barr, and an array of police and federal officials who were allegedly involved in a violent police attack on peaceful protesters on June 1 in Washington, DC. The suit is Black Lives Matter DC v. Trump.

As president, Trump has immunity from lawsuits seeking money damages for his official actions. Yet Barr, who reportedly gave the order to remove the demonstrators from Lafayette Square, a public park adjacent to the White House, could potentially be held personally liable to both the Black Lives Matter chapter and the individual protesters. (On Friday, Barr claimed that he did not give the order, but his own Justice Department admitted that he gave the order earlier this week.)

Although lawsuits challenging police misconduct are common, it is exceedingly rare for a sitting US attorney general to assume direct command over law enforcement officers in the field. So this is an unusual case wherein a Cabinet official could be held liable for the actions of officers he personally oversaw.

The suit also names as defendants Secretary of Defense Mark Esper and Secret Service Director James Murray, in addition to 120 unidentified law enforcement officers. Its plaintiffs seek both money damages and an injunction preventing federal law enforcement from continuing to use the tactics it deployed in Lafayette Square.

The suit raises strong allegations that officers acting under Barr’s command violated the constitutional rights of protesters. But merely showing that the officers violated the Constitution will not be enough for the plaintiffs in Black Lives Matter to prevail, in large part because law enforcement enjoys broad — if not entirely insurmountable — immunity from civil suits. Indeed, the Black Lives Matter plaintiffs will need to overcome a dizzying array of legal obstacles that stand in the way of victims of police violence.

Moreover, those plaintiffs must litigate their case before an increasingly conservative judiciary that appears determined to erect more barriers in front of plaintiffs challenging abuse by federal law enforcement.

Black Lives Matter could end in defeat for the protesters, in other words, even if Barr and the officers violated the Constitution.

The plaintiffs have strong arguments that their constitutional rights were violated

There are strong arguments that officers acting under Barr’s command violated the First Amendment rights of protesters. Although the First Amendment offers broad protection to political demonstrators, the government may still impose reasonable “time, place and manner” restrictions on such demonstrators. The right to protest doesn’t mean that someone can break into Barr’s home and yell at him while he eats dinner with his family.

But First Amendment rights are strongest in places where the public traditionally gathers openly and freely. As the Black Lives Matter complaint points out, “Lafayette Square is a traditional public forum where First Amendment rights are at their apex.” That means that the government bears an unusually high burden if it wants to restrict free speech in this location.

Moreover, one of the gravest sins under the First Amendment is “viewpoint discrimination.” That is, the government is almost never allowed to treat different speakers differently because it agrees with the message of one group and disagrees with the message of another one.

But President Trump has signaled that he intends to do just that. The day before Barr allegedly ordered police to clear protesters out of Lafayette Square, Trump tweeted about protesters demonstrating against police violence that “these people are ANARCHISTS. Call in our National Guard NOW.”

And yet, one day earlier, Trump seemed to actively encourage his own supporters to rally near the same location where the Lafayette Square demonstration took place.

The professionally managed so-called “protesters” at the White House had little to do with the memory of George Floyd. They were just there to cause trouble. The @SecretService handled them easily. Tonight, I understand, is MAGA NIGHT AT THE WHITE HOUSE???

— Donald J. Trump (@realDonaldTrump) May 30, 2020

The government may not actively encourage protests by people with a conservative viewpoint, while using violent tactics to discourage peaceful protesters with a different viewpoint.

Additionally, the Fourth Amendment protects “against unreasonable searches and seizures,” and a violent attack by law enforcement officers typically amounts to a “seizure.” The government, in other words, must show that it was reasonable to remove peaceful protesters using rather extreme law enforcement tactics. And it must do so in the face of credible allegations that the real reason the protesters were removed is so that Trump could have a photo op at a nearby church.

Existing law frequently protects law enforcement officers who commit illegal acts

Even if Barr and the officers under his command did violate the constitutional rights of protesters, however, the Black Lives Matter plaintiffs must clear an array of legal hurdles in order to prevail.

For one thing, both Barr and most of the officers present in Lafayette Square are federal employees. The plaintiffs in Black Lives Matter seek money damages against these officers, in addition to an injunction “ordering Defendants to cease engaging in the unlawful acts” alleged in their lawsuit.

Most of the claims in Black Lives Matter arise directly under the Constitution, and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971) permits lawsuits seeking money damages from federal law enforcement officers who violate the Constitution.

But the Court’s Republican majority is hostile to Bivens. Indeed, it recently signaled that it may overrule this decision. In its 5-4 decision in Hernández v. Mesa (2020), the majority warned that Bivens suits are “a ‘disfavored’ judicial activity,” and the Court has even suggested that if Bivens were “decided today,” it is “doubtful we would have reached the same result.”

If the Black Lives Matter plaintiffs manage to clear this hurdle, they still must overcome a doctrine known as qualified immunity. As the Supreme Court held in Harlow v. Fitzgerald (1982), qualified immunity provides that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

But some courts have defined the term “clearly established law” exceedingly narrowly. One recent federal appeals court decision, for example, held that police who trashed a woman’s home and saturated it with tear gas, after she gave them permission to enter in order to search for her ex-boyfriend, were entitled to qualified immunity.

The court’s opinion suggests that, in order to overcome qualified immunity, the woman would have had to produce a binding precedent holding that when a homeowner gives police consent to enter their home, that consent does not include permission to smash windows or to fire chemical weapons into the house.

It’s possible that courts hearing the Black Lives Matter case will impose a similarly high burden on the plaintiffs in that case.

The Black Lives Matter plaintiffs also face a heavy burden in their quest for an injunction. In City of Los Angeles v. Lyons (1983), the Supreme Court held that a victim of a police chokehold could not obtain an injunction preventing the Los Angeles Police Department from using similar chokeholds in the future unless he could show that “he was likely to suffer future injury from the use of the chokeholds by police officers.” That is, he had to show that he was likely to be choked a second time by a Los Angeles cop.

Similarly, the Black Lives Matter plaintiffs could have to show that they are likely to be gassed or hit with rubber bullets a second time by federal law enforcement officers.

Given the fact that the protests remain ongoing, and that police violence appears to be widespread in response to these nationwide protests, Black Lives Matter may be the rare case where a plaintiff can show that they are likely to experience the same form of police violence twice. But Lyons remains a high bar for any plaintiff seeking to enjoin police misconduct.

The bottom line is that law enforcement frequently engages in violence and gets away with it, not because the violence is lawful, but because the Supreme Court gives extraordinary protection to rogue police.

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