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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New IJ cert petition: Is an officer who has consent to “get inside” a house but instead destroys it from the outside entitled to qualified immunity in the absence of precisely factually on-point case law? The Ninth Circuit said yes. We’re asking the Supreme Court to reconsider. Click here to learn more.

New podcast: The U.S. Supreme Court will hear oral argument in an IJ school choice case, Espinoza v. Montana Dep’t of Revenue, this coming Wednesday. So just for fun we put together a little episode on the history of school choice that explores, among other things, how the remnants of 19th-century anti-Catholicism still play an outsized role in educational policy today. (Click here for Apple Podcasts.)

• Electronic service provider ABC Corp. (a pseudonym) received a grand jury subpoena for subscriber information, along with a court-ordered nondisclosure order prohibiting it from telling anyone about the subpoena for one year. An unconstitutional prior restraint on speech? The Supreme Court may have roundly rejected prior restraint, says the Third Circuit, but this is one of the rare cases where one will be upheld.
• The Air Force’s effective ban on deploying HIV-positive airmen is out of step with modern science, says the Fourth Circuit. So no discharging two airmen (who are asymptomatic and whose doctors and commanding officers support their retention) while this lawsuit proceeds.
• Firefighter refuses Leander, Tex. city requirement that all personnel receive a Tdap vaccine, citing his Baptist faith. The dep’t offers him two options: Take a code enforcement job with the same pay and benefits or wear a respirator while on duty. When the firefighter declines both options, he’s fired for insubordination. Illegal religious discrimination? A free exercise violation? Neither, says the Fifth Circuit. The city offered reasonable accommodations that do not burden the firefighter’s religious practice. Judge Ho (concurring/dissenting): I think we need more facts. Also, allow me to tell you at considerable length why both Employment Division v. Smith and qualified immunity are bad.
• Federal inmate writes a letter to the district court explaining that, following a gender transition, they would like the court to change the name on the 6-year-old judgment to reflect their new legal name. District court: A subsequent name change is not a clerical error that a court can fix. Fifth Circuit: As no rule authorized this kind of motion, the district court lacked jurisdiction to entertain it. And we won’t use the inmate’s preferred pronouns because Congress hasn’t told us we must. Dissent: We should not issue drive-by jurisdictional rulings or use non-preferred pronouns.
• As undercover FBI agent reaches police barricade at Garland, Tex. event featuring drawings of the prophet Muhammed, two men with whom the undercover agent had been communicating jump out of the car behind him wearing body armor, carrying hundreds of rounds of ammunition and a photocopied ISIS flag. They shoot a security guard in the leg before being promptly killed themselves. Can the security guard sue the feds? The Fifth Circuit says no.
• Sixth Circuit: I’ve got good news and bad news. The good news is that the Ninth Circuit has changed the way it calculates drug sentences, so if you were sentenced today, you would only get 10 years instead of the 20 you’re serving. Habeas petitioner: That’s great! What’s the bad news? Sixth Circuit (over a dissent): You were not sentenced today.
• Allegation: After Huron County, Mich. officer arrests extremely drunken woman for DUI, he takes her to jail and has her walk up stairs with her hands cuffed behind her back while he waits at the top of the stairs. Gravity + ethanol = head trauma. District court: This is just like another case, where a court held that police can’t leave a drunk person cuffed in a holding cell where they might injure themselves. Sixth Circuit: That (out-of-circuit) case was about holding cells. This case is about stairs. Qualified immunity.
• Bungled prosecution, O. Henry, and Mark 12:17—not to mention the modified categorical approach—are all on display in a bizarre story out of the Sixth Circuit. The upshot? Mosques aren’t used in interstate commerce, even when former congressional candidates plot to blow them up.
• 312-pound teenager with a heart condition runs from a store security guard after being caught shoplifting. Apprehended by Indianapolis police upon collapsing from the exertion, he complains of difficulty breathing after being handcuffed behind his back. Police call paramedics, who examine him, find him breathing normally, and say he’s fine. While waiting for the jail wagon to arrive, he ceases to be fine—he’s unresponsive and his pulse is weak. Police call another ambulance, but paramedics are unable to revive him. The medical examiner determines he had a heart attack exacerbated by (among other things) the handcuffs. Seventh Circuit: This is tragic, but the police didn’t know the handcuffs were causing breathing trouble, and the suspect didn’t complain about the tightness of the cuffs. Qualified immunity.
• Man convicted of 1989 murder learns, years later, that his appointed counsel believed that his black clients were idiots who deserved to be convicted. New trial? Ninth Circuit (2018): No. You didn’t show his racism adversely affected his performance. All three judges, concurring in their own judgment: Unfortunately, we’re bound by Ninth Circuit precedent to reach this result. Ninth Circuit (2020, en banc): The state now concedes a new trial is warranted, so, without reconsidering our precedent, conviction vacated.
• The feds fund teen pregnancy prevention through grant programs with two funding tiers. The first tier is for replicating programs that have been proven effective, and the second tier enables grantees to test new programs. According to Planned Parenthood, the grant programs illegally favored or required abstinence-only programs in 2018. Ninth Circuit: That is indeed the case for the first tier, which demands grantees use two never-before-implemented tools. Something that has never been implemented cannot have been proven effective. As for the second tier, the district court shall address it first.
• Allegation: Healthy 27-year-old arrives at Hutchinson, Kan. prison, begins suffering a variety of increasingly alarming symptoms: numbness, decreased vision, his arms shake uncontrollably, his fingers bend in abnormal directions. He tells medical staff “it feels like something is eating my brain.” The staff either fabricate or mistakenly document an MRI scan of his brain that turns up normal. Soon after, he begins talking incoherently, drinks his own urine, defecates on himself and doesn’t clean up. A real MRI is taken, revealing a widespread infection in his brain. Instead of being taken to a hospital, he’s put back in isolation. The next day his heart stops and he is rushed to the hospital where he dies. Tenth Circuit: The allegations against a particular doc aren’t sufficiently specific, so qualified immunity. (The case is proceeding below against other medical staff, however.)
• While in jail on misdemeanor charges, inmate asks guard if he can charge his cell phone, which was not taken from him during booking. Uh oh! He’s charged with possessing contraband! Trial court: “[C]onsider yourself fortunate” that I’m only sentencing you to 12 years in jail, with parole eligibility after three, instead of a full 15-year sentence. Mississippi Supreme Court: “While obviously harsh, [a] twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.” Concurrence: Our case law does, indeed, demand we uphold a 12-year sentence against this father of three for a victimless crime likely caused by a failure in booking procedure, but the prosecutor and trial judge deserve a mild finger-wagging for being so punitive. (H/t @jduffyrice)
• And in cert grant news, the U.S. Supreme Court will review Barr v. American Association of Political Consultants, which we previously summarized thusly: American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones, but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We’ve got good news and bad news. The good news is that we agree with you. The bad news is that we’re going to fix the problem by prohibiting the loan collectors from making robocalls, too.
• And in en banc news, the Third Circuit will not reconsider its decision that an inmate cuffed to a bed in an uncomfortable position and forced to lie in his own filth for nine days can sue over the length of the confinement but not the conditions.

Last August, a DEA agent seized over $80k in cash from Rebecca Brown at the Pittsburgh International Airport. But even though it’s perfectly legal to fly with that much cash and Rebecca hasn’t been charged with a crime, the feds won’t return the money. In fact, the cash belongs to Rebecca’s dad, Terry, a retired railroad engineer. Terry spent years saving it up and hiding it in his home (following a practice he’d learned from his parents). After he downsized to a new apartment, Terry decided he was uncomfortable with that much cash in his apartment and asked Rebecca to deposit it in a joint bank account. This week, IJ launched a class action against the TSA and the DEA (and its agent), seeking the return of the money and permanent nationwide injunctions against the agencies’ unconstitutional and unlawful cash seizure practices. Click here for more from The Washington Post.

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• Avenue 5. HBO. Sunday, January 19, 10 p.m.
• Outmatched. Fox. Thursday, January 23, 8:30 p.m.

The best TV review I ever read appeared in TV Guide sometime back in the mid-’60s. Unfortunately, I can’t find it anywhere on the internet. (Why don’t some of you loafers reading this try to find and link it? It’s not like you otherwise have lives.) (Wait, did I write that out loud?) (Sorry.) Written by Isaac Asimov, it was a rather stern denunciation of the original CBS version of  Lost in Space, in which a spacecraft is knocked off course and into another galaxy because of the unanticipated extra body weight of a stowaway. Asimov wrote, if I recall correctly, that this was, conceptually, roughly like a 4-year-old in Topeka, Kansas, missing a stop sign on his trike and skidding off the North American continent into the Pacific Ocean.

I thought of Asimov’s review a few days ago while watching Avenue 5, HBO’s new dingbat outer-space comedy. A futuristic tale about a space luxury liner that’s gone catastrophically off its route after an unforeseen encounter with an asteroid, it’s like the miscegenated offspring of a quickie three-way  between Lost in Space,  Love Boat and Veep: sometimes funny, often inane, and usually obsessed with conjugation of fornicational verbs.

The Veep elements—unmistakable from the opening moments, when a soon-to-be-ex-wife screams at her husband across a dining room that he can find a chair “at the bottom of the swimming pool on Deck Fuck You!”—doubtlessly come from that show’s creator, Armando Ianucci, who’s also the executive producer of Avenue 5. Like Veep and Ianucci’s other trademark production, The Death of Stalin, Avenue 5 has a big cast, an even bigger collection of subplots,  and a penchant for loopy humor that doesn’t always land well.

The cast is led by Hugh Laurie as Ryan Clark, the glossily suave captain of the ship Avenue 5, who preens through its largely automated dining halls plying the passengers with breezy slogans like “Set phasers to stun!” But the real boss is owner Herman Judd (Josh Gad, The Comedians), whose billions are outnumbered only by his stupid ideas. (Which include an advertisement for the ship’s dinner buffet: “If you’re not completely satisfied, you’re wrong!”) He’s kept in check, barely, by his stern personal assistant Iris (Suzy Nakamura, Dr. Ken). The most important member of the crew is Billie (Lenora Crichlow, who played the melancholy ghost on the original BBC version of Being Human), the assistant engineer—who has to take over when her chief is killed during the brush with the asteroid.

That cock-up—”The worst disaster since Google folded!” shouts one company exec—screws up the ship’s course that what was planned as an eight-week cruise is now going to take three years before the ship can get back to Earth, and the crew is spectacularly inept in either coping with damaged equipment or placating the furious passengers.  As on Veep, much of the humor in Avenue 5 comes in the form of creatively vehement insults; and as on Veep, they fail to develop either the plot or the characterizations very much and soon wear out their effectiveness. Avenue 5 is slow to develop a real story line, and maddeningly prone to beating jokes to death. There are painfully long stretches without a laugh or even a chuckle.

Yet there are some laughs, good one, particularly when Laurie is bouncing jokes off his straight-person Crichlow.  Avenue 5 might yet hit its stride. One way to improve it is to watch it after a viewing of Fox’s alleged sitcom Outmatched, which features Jason Biggs (the American Pie franchise) and Maggie Lawson (Angel from Hell) as the horrified parents of three gifted children. Aghast that their kids are smarter than they are and prefer writing operas or cloning the household pets to eating funnel cake on the Atlantic  City boardwalk, they lock themselves in the basement to smoke dope and plot ways to curdle the children’s intelligence until they resemble Lena, the couple’s dumb kid. (Does “dumb” sound mean? Her ambition is to become a waffle.)

Outmatched is abominable, repulsive claptrap, not just anti-intellectual but actually anti-intellect, a rousing call for the stupification of America. The only time I laughed was a scene in which the parents enter the living room to discover that the kids are mindlessly destroying it. “I’m teaching Lena the concept of anarchy,” one explains. So that’s what Lysander Spooner was talking about.

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In an interview with the New York Times‘ editorial board, former Vice President Joe Biden made his most stringent call yet for cracking down on free speech on the internet.

After being asked by the Times about previous comments Biden has made regarding Facebook’s refusal to remove negative ads targeting his campaign, the Democratic front-runner attacked both the social media platform and its CEO, Mark Zuckerberg.

“I’ve never been a fan of Facebook,” Biden says. “I’ve never been a big Zuckerberg fan, I think he’s a real problem.”

Biden and Facebook have been feuding for months, as Reason has previously covered. In an October letter to Facebook, Biden’s campaign called on the social media site to reject political ads containing “previously debunked content”—like a Trump campaign ad linking Biden and his son, Hunter, to corruption in Ukraine. Shortly afterwards, Zuckerberg said the company’s policies were “grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is.”

That hasn’t sat well with Biden. In a CNN town hall event in November, Biden said he would be willing to rewrite the rules for all online platforms in order to force social media companies to “be more socially conscious.”

In this week’s interview with the Times, Biden has gone a step further. Now he’s calling for revoking Section 230 of the Communications Decency Act of 1996—a snippet of federal law that’s generally regarded as the internet’s First Amendment, since it protects online platforms from being legally liable for content produced and posted by third parties.

“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” says Biden.

When the Times’ Charlie Warzel points out that Section 230 is “pretty foundational” to the modern internet, Biden takes his personal disagreement with Zuckerberg and blows it up into a policy that would destroy free speech for all internet users.

“That’s right. Exactly right. And it should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy,” Biden says. “You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.”

Biden goes on to say that both Zuckerberg and Facebook should be held civilly liable for false information posted on the platform, and even leaves open the possibility that Zuckerberg could somehow be held criminally liable. All of this, Biden says, is because Facebook ran “Russian ads” during the last presidential campaign.

Those ads were comically bad and had a negligible impact on the outcome of the 2016 election. What would significantly impact the future of American democracy and society would be the elimination of Section 230 protections for the entire internet.

But if you look back at Biden’s long political career, it’s not too surprising that Biden is willing to take overly broad federal action that will surely have unintended consequences.

It’s not that Biden has been an opponent of free speech in meatspace or online. (He even voted for the Communications Decency Act when it passed the Senate back in 1996.) But Biden has a long history of jumping aboard the political bandwagons created by moral panics, pushing policy to expand the government’s power to deal with perceived threats.

As I detailed in a Reason feature last month, Biden was instrumental in passing a 1984 anti-drug law that effectively created the modern civil asset forfeiture system which has been regularly abused by law enforcement to seize cash, cars, homes, and other valuables from individuals who are often never charged with a crime. In 1986, Biden co-sponsored the Anti-Drug Abuse Act, spurred by a moral panic over several high-profile deaths caused by cocaine. The bill added more mandatory minimum sentences for federal drug crimes, including the provision requiring a five-year prison term for anyone convicted of possessing 5 grams of crack cocaine or 500 grams of powdered cocaine. That massive discrepancy “unjustly and disproportionately” penalized African Americans and poor communities, the American Civil Liberties Union said in a 2006 report on the law.

Later, he co-sponsored a 1988 law that bolstered prison sentences for drug possession crimes and established the Office of National Drug Control Policy, effectively creating an internal lobbying organization to defend the drug war against critics.

Most famously, Biden championed the 1994 crime bill and its harsh “three-strikes” rule, which imposed life sentences for anyone convicted of a violent felony if they had two prior offenses on their record—including drug crimes.

You see echoes of that same playbook in his attacks on social media companies. To Biden, sweeping penalties are the only way to stop what he sees as a crisis—consequences be damned.

To pass those crime bills, Biden worked closely with Republicans. Even in today’s era of heightened partisanship, Biden touts his ability and history of working across the aisle as a chief virtue. So there is good reason to worry about a President Biden finding common cause with Republicans like Sen. Josh Hawley (R–Mo.) to repeal Section 232.

Decades later, it’s now obvious that the anti-drug policies of the 1980s and 1990s have had disastrous consequences for many Americans—especially minorities, who have been particularly victimized by the arbitrary crack/powder distinction Biden once pushed—and have filled prisons with nonviolent offenders.

Revoking or rewriting Section 230 would be similarly bad. Free speech online has given voice to everyone and cracking down on that right, as with all forms of censorship, would most hurt those who have less political or social power.

Repealing Section 230 would — in practical reality — result in the single-greatest wave of censorship in the modern history of the United States. Politicians on both sides of the aisle have re-interpreted its protection of individual liberty as a "giveaway" to Big Tech. Wrong. https://t.co/JiR1D0fKCu

— David French (@DavidAFrench) January 17, 2020

But you can expect Biden to frame this as a commonsense solution that reasonable people on both sides of the aisle support. That’s what he does, and that’s why he’s dangerous.

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A Colorado judge yesterday rejected a woman’s petition for a court order that would disarm the police officer who killed her son in 2017—a shooting that was deemed justified as an act of self-defense. Does this case illustrate the potential for abuse of Colorado’s new “red flag” law, or does it show the law’s safeguards are effective? Arguably both, but the case’s sheer weirdness makes its broader relevance debatable.

On July 1, 2017, Cpl. Philip Morris, who works for the Colorado State University Police Department, fatally shot 19-year-old Jeremy Holmes, who was carrying an 11-inch bayonet knife and literally asking to be killed, on a street near the school’s Fort Collins campus. Body camera footage of the encounter shows Morris ordering and begging Holmes to drop the knife dozens of times while backing away as Holmes continues to approach him. “I don’t want to hurt you,” Morris says. “Please drop the knife.” As Holmes closes the distance between them, Morris says, “I’m going to try a taser.” At this point Holmes runs toward him, prompting Morris to open fire.

Both the police department and the Larimer County District Attorney’s Office cleared Morris of wrongdoing, but Holmes’ mother has been publicly contesting that conclusion for years. Susan Holmes’ latest act of protest is a January 9 petition seeking an extreme risk protection order (ERPO) against Holmes, who she says “used his firearm to recklessly & violently threaten and kill 19 yr old Jeremy Holmes.” Holmes, she argues, should not be allowed to possess guns because he “poses a significant risk of causing personal injury to self or others.”

To obtain an ERPO, which lasts for 364 days, the petitioner has to demonstrate a “significant risk” by “clear and convincing evidence.” Holmes also could have sought a temporary, ex parte ERPO, which lasts up to two weeks and requires the petitioner to prove by “a preponderance of the evidence” that the respondent poses a significant risk “in the near future.” If she had gone that route, Morris would not have been given an opportunity to rebut her allegations.

In this case, that probably would not have mattered, since ERPO petitions can be filed only by law enforcement officers, law enforcement agencies, or “family or household members.” That last category is quite broad, but not broad enough to cover Holmes. She claimed on the petition that she has “a child in common” with Morris—meaning her son, who is not biologically related to the officer but was killed by him. At yesterday’s hearing, Eighth Judicial District Chief Judge Stephen Howard rejected that reading of the law. “He said there was no evidence I had any standing,” Holmes told Westword.

Holmes in any case refused to testify, saying Howard had demonstrated his bias against her by his handling of a lawsuit related to her son’s death. After Howard rejected Holmes’ request that he recuse himself, she declined to submit any evidence. It is hardly surprising that Howard rejected her ERPO petition.

Before Howard’s ruling, Colorado House Minority Leader Patrick Neville (R–Castle Rock) cited Holmes’ petition as an illustration of the dangers posed by the red flag law. “We predicted this and said a falsely accused person has no recourse other than hoping a DA files charges,” he tweeted on Tuesday. “No recourse to recoup lost wages or reputation. One example of many about how this bill was so horribly written.”

The law does say that “a person who files a malicious or false petition…may be subject to criminal prosecution for those acts.” Larimer County Sheriff Justin Smith, who called Holmes’ petition “a fraud,” said on Facebook, “We are actively investigating this abuse of the system and we will determine what charges may be substantiated against the petitioner, Ms. Holmes.” But it’s not clear what charges against Holmes could be proven beyond a reasonable doubt, given her apparent sincerity in portraying Morris as a menace. And as Neville pointed out, the law does not give the victim of a “malicious or false petition” a right to sue the petitioner, although an earlier version of the bill included such a provision.

In Smith’s view, this case “demonstrates the tremendous procedural deficiencies in the ERPO law—deficiencies I’ve spoken out about many times over the previous year.” Not surprisingly, Attorney General Phil Weiser, a leading supporter of the law, has a different take. “This was a positive development,” he told KMGH after the hearing. “It showed this law can’t be abused for purposes of harassing an officer. The precedent has been set that this sort of petition is out of bounds, and [it] was summarily dismissed….This law is to protect people and to save lives, and if people try to come forward and use this law for other purposes, it’s not going to be tolerated.”

That is surely reading too much into the failure of Holmes’ petition, which foundered for lack of standing and in any case would have been doomed by her refusal to testify. Even leaving those two issues aside, there was little risk that Morris would lose his Second Amendment rights based on a shooting that his department and the local D.A. had deemed justified. Ordinary citizens facing dubious allegations by estranged spouses, ex-girlfriends, in-laws, or housemates may not be so fortunate.

In such cases, judges have a strong incentive to err on the side of issuing orders, since the prospect of a preventable suicide or homicide looms large compared to the risk that someone will unfairly but temporarily be barred from possessing guns. The long list of potential petitioners, the ready availability of ex parte orders, the vagueness of “significant risk,” and the admissibility of any evidence a judge considers relevant all serve to increase the likelihood that people will be deprived of their constitutional rights for no good reason.

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