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A grand jury in Louisville, Kentucky returned three criminal charges against one of the police officers involved in the botched March 2020 drug raid that killed 26-year-old Breonna Taylor.

Six months after Taylor’s death, the grand jury declined to charge two of the Louisville Metro Police Department (LMPD) officers involved in the deadly raid but indicted former LMPD Detective Brett Hankison on three counts of first-degree wanton endangerment. The charges are not directly related to Taylor’s death, but rather for endangering her neighbors with wild shots.

Taylor’s killing, along with the killing of George Floyd by Minneapolis police, fueled a summer of massive demonstrations, nationwide demands for police reform, and violent unrest in major cities around the U.S.

In a series of tweets, Benjamin Crump, a civil rights attorney representing Taylor’s family, said the failure to indict any of the officers on charges directly related to Taylor’s murder was “outrageous and offensive.”

If Brett Hankison's behavior was wanton endangerment to people in neighboring apartments, then it should have been wanton endangerment in Breonna Taylor's apartment too. In fact, it should have been ruled wanton murder!

— Ben Crump (@AttorneyCrump) September 23, 2020

Likewise, Carl Takei, senior staff attorney with the American Civil Liberties Union, said in a statement that the grand jury’s decision “is the manifestation of what the millions of people who have taken to the streets to protest police violence already know: Modern policing and our criminal legal system are rotten to the core.”

Lawyers for Taylor’s family say she was asleep in bed with her boyfriend, Kenneth Walker, on the night of March 13, when LMPD officers serving a no-knock narcotics warrant broke down their door with a battering ram. Walker, a registered gun owner, shot at the officers believing it was a home invasion, hitting one officer in the leg. The officers fired back and hit Taylor eight times, killing her. No drugs were found.

Last week the city of Louisville, Kentucky, approved a $12 million payout to settle a civil lawsuit filed by Taylor’s family.

Louisville also moved to fire Hankinson in June. In a termination letter, acting Police Chief Robert Schroeder wrote that Det. Hankison, one of the three officers involved in the fatal March raid, “displayed an extreme indifference to the value of human life” and violated the department’s deadly force policy when he “blindly fired 10 rounds” into Taylor’s apartment. 

“In fact the 10 rounds you fired were into a patio door and window which were covered with material that completely prevented you from verifying any person as an immediate threat or more importantly any innocent persons present,” Schroeder wrote. “You further failed to be cognizant of the direction in which your firearm was discharged. Some of the rounds you fired actually traveled into the apartment next to Ms. Taylor’s endangering the three lives in that apartment.”

The Louisville Metro Council has also banned no-knock raids in legislation named after Taylor. The FBI is currently investigating Taylor’s death.

Reason‘s Jacob Sullum wrote this June that the reckless raid once again showed the moral bankruptcy and fatal consequences of the drug war: “The problem is the attempt to forcibly prevent Americans from consuming arbitrarily proscribed intoxicants, which is fundamentally immoral because it sanctions violence as a response to peaceful conduct that violates no one’s rights. That problem cannot be solved by tinkering at the edges of drug prohibition.”

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The Department of Justice (DOJ) has submitted to Congress draft legislation that could obliterate legal protections for internet companies and their users. The proposal takes broad aim at Section 230, a (widely misrepresented) law that helps protect First Amendment rights across the internet while also protecting private companies and individuals that want to filter out certain types of content.

Passed in 1996, Section 230 has been under obsessive attack from both Democrats and Republicans for at least the past decade, and especially in recent years, as online ideas, speech, and content became more and more decentralized and less gatekept. Politicians on both sides have proposed actions aimed at incrementally chipping away at the law’s protections. But this new Justice Department draft legislation strikes at Section 230’s very heart in a number of ways.

If the DOJ gets its way, private web service providers—think: social media, video platforms, consumer review sites, online marketplaces, petition and crowdfunding services, dating apps, newspaper comment sections, blogging platforms, private message-boards, and so much more—and the people who use those services could be punished for attempts to filter out objectionable content.

Under the DOJ proposal, employees and users of online services could only “restrict access to” content if “the provider or user has an objective reasonable belief” that a specific piece of content “violates its terms of service or use” or falls into one of a few categories. While the DOJ doesn’t provide an example of content that is currently restricted but that would be unrestricted under the version of Section 230 it wants Congress to pass, it’s possible the new language is meant to appease prominent Republicans who believe popular social media platforms have arbitrarily banned conservatives and that politics-based content shouldn’t be allowed.

As it stands now, a web platform’s “terms of service or use” have no bearing on Section 230 protection—although President Donald Trump acted as if they did in a recent executive order concerning Twitter. Despite what Trump suggested, Twitter doesn’t (yet) risk losing Section 230 protection if it can’t prove that every single suppressed tweet was treated in strict accordance with a specific plank of its terms of service.

It seems the Justice Department is now pushing to revise federal law to conform the law itself to the president’s (currently erroneous) interpretation of Section 230.

In a section titled “GOOD FAITH,” the DOJ draft legislation says that a service provider would benefit from Section 230 protections only if its terms of service “state plainly and with particularity the criteria the service provider employs in its content-moderation practices,” and only so long as the company did “not restrict access to or availability of material on deceptive or pretextual grounds,” among other things.

These proposals fly in the face of the main problem Section 230 was created to address, which was the “moderator’s dilemma.” In trying to filter out any content created or uploaded by users, a digital service risked becoming legally liable for whatever defamation, obscenity, or otherwise illegal content it allowed through. Without Section 230 protections, a digital service like Facebook or Twitter would be better off filtering no user content, for any reason, or dedicating a vast amount of resources to vetting essentially all user content and only allowing the most anodyne through.

Neither option is desirable, which is why Section 230’s first part declares that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”—i.e., Facebook is not automatically responsible for your speech, and you’re not automatically responsible for the speech of every other Facebook user.

Section 230’s second part—the “Good Samaritan” clause—says that neither internet services nor their users will lose this protection over attempts “to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

These two protections mean that a service provider can host a forum for another person without necessarily being responsible for what that person says in the forum, and that the service provider can restrict some of what gets said in the forum it owns without taking on liability for forum content it doesn’t remove or restrict.

The DOJ revision to Section 230, however, would take away many of a digital services options for “restrict[ing] access to or availability of material.” In the DOJ’s preferred legal framework, content filtering and moderation can only be done if a service provider or user “has an objective reasonable belief” that a specific piece of content “violates its terms of service or use,” or “has an objectively reasonable belief” that the content is “obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful or otherwise objectionable.” [Bolding mine, strikethrough the DOJ’s.]

At first glance, this appears to expand the scope of content that’s allowed to be filtered out. But it actually narrows it, replacing the much broader “objectionable” with “unlawful.”

The DOJ revision would also insert a vague new standard that content moderation be based on “objective reasonable belief,” which is a phrase so unspecific and debatable that it would likely spur endless litigation.

If Congress adopts DOJ’s recommendations, expect to see features that help individual users control their internet experience dwindle (you blocking someone for a non-federally-approved reason could cost Twitter big time!), coupled with a serious ramping up of what is prohibited by companies’ terms of service. The end result will almost certainly be less user content on the wider web and an ever-growing list of rules governing what we can say to and share with each other online.

The DOJ proposal doesn’t just strike at the ability to filter out bad content, however. It also takes away certain Section 230 protections if illegal content does make it through moderation filters, or if a company is deemed to “promote, solicit, or facilitate” content or activity that is determined to be illegal. You can find the DOJ’s full proposed changes—which are numerous and beyond the scope of this post—here.

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In his recently disclosed interviews with Bob Woodward, President Trump bragged about his record appointing judges to the federal bench. The Washington Post reports:

In a mid-December interview with Woodward, Trump boasted that he and McConnell “have broken every record” on judges, saying the issue is the majority leader’s top priority. . . .

In January, the president bragged that he had installed 187 judges to the federal bench — making 1 in 4 circuit court judges a Trump appointee — and two to the Supreme Court.

“The only one that has a better percentage is George Washington, because he appointed 100 percent,” Trump told Woodward, a Pulitzer Prize-winning journalist and Post associate editor. “But my percentage is, you know, like, ridiculous.”

President Trump has certainly been successful at appointing a great many jurists to the federal bench—214 total as of last week. But President Trump is totally wrong when he claims that he’s appointed a significantly greater percentage of sitting federal judges than did his predecessors.

Russell Wheeler at the Brookings Institution has crunched the numbers, and he finds that (as of Sept. 8), Trump had appointed a grant total of 203 judges, representing 23 percent of federal judges in active service. That’s a significant proportion of federal bench, but it’s a smaller percentage of sitting federal judges than had been appointed by Presidents Carter (37%), Nixon (36%), and Clinton (24%) at an equivalent point in their first terms. (The combination of Presidents Kennedy and Johnson had also appointed a greater percentage of the federal bench by Sept. 8, 1964.) George W. Bush had also appointed 23 percent of the federal bench by Sept. 8 of 2004 as well.

Of course there are more seats on the federal bench than there were in the 1970s, so does that make a difference? A little, as Trump has appointed more judges than Nixon (187) or Bush (200) had, but Trump’s 203 appointments by Sept. 8 matches the number of Clinton, and is still well below Carter’s total of 248.

While Trump’s record is not quite what he claims, there is no question his appointments have shaped the federal bench. When Trump took office, only 44 percent of federal circuit court judges had been appointed by Republican Presidents. By September 8, the proportion appointed by Republicans had climbed to 55 percent. That is certainly a significant change, driven by the fact that 30 percent of sitting federal circuit judges were appointed by President Trump. Yet the proportion of federal circuit judges appointed by a Republican President remains below what it was in 2008 (56%), 1996 (59%), and 1992 (66%). To reach these heights, Trump would certainly need a second term.

What about the quality and caliber of these nominees? Here it is worth repeating what I posted last December on the subject:

Contrary to common characterizations in the press and punditocracy, President Trump’s nominees have, on the whole, been quite impressive and highly qualified. While there are some notable exceptions, the qualifications of Trump’s judicial nominees compare favorably with those of his predecessors.

Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received “Well Qualified” ratings from the American Bar Association than any recent President save for George W. Bush, according to the Congressional Research Service (see Table 11 on page 26). As of last week, President Trump’s 2019 nominees have continued this trend (based on the ABA ratings through December 4 presented here). President Obama nominated a large number of highly qualified jurists, but according to the ABA, a higher percentage of Trump’s appointees were “Well Qualified.”

President Trump has nominated an unusual number of former academics and appellate litigators to the bench, but this has not come at the expense of their qualifications. As Adam Feldman notes on EmpiricalSCOTUS, “Trump has a higher rate of “well-qualified” confirmed first time judges than any other president on the list aside from George W. Bush.”

Overall, a majority of President Trump’s judicial nominees have received “Well Qualified” ratings from the ABA—80 percent of Circuit Court nominees and 62 percent of District Court nominees according to CRS. If anything, this understates the relative qualifications of Trump’s judicial picks, as there are reasons to doubt the ABA’s assessment of conservative nominees. Indeed, multiple peer-reviewed studies have found that the ABA evaluates Republican nominees more critically than Democratic nominees with equivalent experience. (Other research suggests there is little relationship between ABA ratings and judicial performance, as measured by reversal rates.)

I went over the numbers for Trump’s nominations made during the 116th Congress, and the pattern is the same. 76 percent of Circuit nominees were rated “Well Qualified,” and 74 percent of District Court nominees were rated “Well Qualified,” for an overall rate of 75 percent (126 out of 189 nominations made). Only 2 percent of Trump’s nominees during the 116th Congress were rated “Not Qualified.”

Trump’s judicial nominees are generally quite conservative in their judicial philosophies, and that may not be to everyone’s liking, but there is little question the vast majority are eminently qualified to serve on the federal bench.

The bottom-line: President Trump (with a major assist from Senator McConnell) has had a significant effect on the federal judiciary, but it is not as record-breaking as he would like to claim. It has also come at a time when the Senate considers relatively little legislation, so it is not as if the Senators have much else to do other than confirm judges.

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This November, Maine voters won’t be “throwing their votes away” if they decide to vote for a third-party candidate because they’ll still be able to vote for Joe Biden or Donald Trump.

On Monday, the state’s Supreme Judicial Court upheld the use of ranked-choice voting for its presidential and congressional races, resisting efforts by the state’s Republican Party to force a stop to its use.

In ranked-choice voting, citizens aren’t asked to just choose a single candidate. They are permitted to rank the candidates from most to least favorite. In order to win a ranked-choice vote, a candidate is required to earn a majority of the votes (more than 50 percent), not just a plurality. In the event no candidate gets a majority of the votes, the candidate with the fewest votes is tossed out of the running. Then the votes are tallied again, but for voters whose favorite was just tossed out, their second choice now counts as their vote. This continues until one candidate has earned at least 50 percent of the votes.

Proponents of ranked-choice voting argue that this pushes races away from polarizing winner-takes-all campaigns and allows people to support independent and third-party candidates while still being able to vote for the Democratic or Republican Party nominee if they so choose.

Ranked-choice voting was approved by the Maine voters twice, but the state’s Republican Party has been resistant. Former Republican Gov. Paul LePage served two terms without ever winning a majority of the vote. In 2018, Republican incumbent Rep. Bruce Poliquin ended up losing his U.S. House seat to Democratic challenger Jared Golden, because more independent voters broke in Golden’s direction when they ranked the candidates.

Poliquin sued to try to stop ranked-choice from taking his seat away from him and lost. Republicans then gathered signatures to try, yet again, to repeal ranked-choice voting this election. The courts determined the effort did not gather enough signatures, and Maine voters will officially use this system for electing both president and congressional representatives come November (the state’s constitution has specific rules for how state lawmakers are elected and does not permit the use of ranked-choice voting).

Maine has five presidential candidates that will be on the ballot. In addition to Trump and Biden, voters can choose the Libertarian Party, Green Party, and Alliance Party candidates. Voters can also rank Trump or Biden (or both, or neither) and have their votes counted.

The latest polling in Maine suggests that ranked-choice voting might not make much of a difference in the presidential election results there. Several polls have Biden crossing the majority vote threshold even when accounting for the influence of the third-party candidates. Maine, though, is one of only two states that directs some electoral votes based on which candidates win individual congressional districts, so Trump could still feasibly pick up an electoral vote while most go to Biden. In the 2016 election, for example, Democratic candidate Hillary Clinton won the popular vote in Maine—and thus three of its electoral votes—but Trump also picked up an electoral vote as well since he won the most votes in the state’s 2nd Congressional District.

On the other hand, Republican incumbent Sen. Susan Collins faces a strong challenge from Democrat Sara Gideon and polls don’t currently predict either getting a majority vote. The presence of two independent candidates in the race—Max Patrick Linn, who is running a pro-Trump, anti-immigration campaign, and Lisa Savage, who is running in favor of Medicare for All, the Green New Deal, and ending student debt—might also shake things up. Polling from Suffolk University that accounts for ranked-choice voting currently shows Gideon reaping 48 percent of the second-place votes, compared to 19 percent for Collins.

Ranked-choice voting may very well affect Maine’s outcomes this November.

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