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We have entered the sixth stage of grief following the tragic deaths of basketball star Kobe Bryant, his daughter, and seven others in a Sunday helicopter crash: legislation.

On Thursday, Rep. Brad Sherman (D–Calif.) introduced the Kobe Bryant and Gianna Bryant Helicopter Safety Act, which would mandate that all helicopters come installed with a Terrain Awareness and Warning System (TAWS). This technology warns pilots if they are descending too quickly or flying to close to the ground or other obstacles.

According to the National Transportation Safety Board (NTSB), the helicopter that Bryant and his fellow passengers were on did not have such a system on board.

Ever since a 2004 helicopter crash, the NTSB—which investigations transportation accidents and recommends safety improvements to regulators—has pressured the Federal Aviation Administration to require helicopters carrying six or more people to come equipped with TAWS. So far, the agency has only required it for air ambulances.

“Had this system been on the helicopter, it is likely the tragic crash could have been avoided,” claims a press release put out by Sherman’s office.

That statement is premature, given what we know about Sunday’s accident.

According to the Los Angeles Times, the helicopter carrying Bryant and his fellow passengers had been flying over hilly terrain in fog. Its pilot ascended rapidly to get out of a cloud bank, then started making a left turn before losing contact with air traffic control. The helicopter reportedly descended 2,000 feet before crashing at a high speed into a hillside.

So far, the NTSB has declined to say whether TAWS would have prevented Sunday’s crash. Lead investigator Bill English told Fox News that it’s not clear if “TAWS and this scenario are related to each other.”

One former NTSB air crash investigator, Gregory Feith, told The New York Times that TAWS might have been useful in avoiding Sunday’s crash, but that the system could also have produced a lot of false warnings a pilot may have ignored.

“With what the pilot was doing with Kobe Bryant, it would be beneficial, but when you’re following a highway with hills nearby, you get false warnings. And with false warnings, you tend to tune them out,” Feith said.

Helicopter pilot Brian Alexander similarly told Fox News that if the crash were the result of deteriorating weather conditions and the pilot’s own disorientation, having TAWS installed wouldn’t have helped much.

At a minimum, lawmakers should wait to learn whether TAWS would have prevented Sunday’s crash before they use said crash to justify mandating the technology.

Legislators and safety regulators should also weigh the potential safety benefits of installing TAWS on all helicopters against the costs of doing so, particularly if those costs crowd out other, more impactful safety improvements.

Not doing that crucial cost-benefit analysis often results in mandates for flashy new technology that would have prevented the most recent high-profile incident, while neglecting mundane but more effective safety measures.

A good example is the federal government’s push to get rail carriers to adopt positive train control (PTC)—a technology that prevents derailments by speeding trains—in the wake of a January 2018 derailment in Washington state that killed three people. The deaths from these derailments are a tiny fraction of rail deaths, the vast majority of which happen when trains collide with trespassers or with vehicles at highway crossings. Money spent on PTC could go instead to fencing, double-arm crossing guards at highway-rail intersections, and other improvements that actually address the most frequent rail deaths.

It’s a mistake to impose rush such a mandate into place without considering the trade-offs, whether you’re talking about trains or helicopters.

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

Cert petition: In 2015, DEA agents got a bad tip and raided Miladis Salgado’s Miami home, seizing $15k in cash and forcing her to cancel her daughter’s quinceañera. Though the DEA admitted there was zero evidence linking the money or Ms. Salgado to any crime, it fought her efforts to get the money back for two years before finally relenting. But Ms. Salgado hasn’t been made whole. Last year, the Eleventh Circuit ruled that because the gov’t dropped the forfeiture action right before the court could rule on the merits, Ms. Salgado did not “substantially prevail” and thus she was not entitled to attorney’s fees—meaning a third of the cash will go to her attorney. Now, Ms. Salgado and IJ are asking the Supreme Court to step in and apply the statute’s plain text mandating an award of fees instead of the judicially created “get out of jail free” card for civil forfeiture abuse. The South Florida Sun Sentinel has more.

• Part-time adjunct faculty at Duquesne University attempt to unionize, and the NLRB declares the United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union as their exclusive bargaining unit, presumably because adjuncts grade papers (NB: Your editor does not understand labor law). Duquesne, a “Catholic University in the Spiritan Tradition,” refuses to bargain with the union. An unfair labor practice? D.C. Circuit: Nope, the NLRB lacks jurisdiction over disputes between religiously affiliated nonprofit schools and their faculty. Dissent: Maybe if the adjuncts were fulfilling a religious role, but a categorical exemption sweeps too broadly.
• Under the Violence Against Women Act, aliens who are subject to removal can seek cancellation of removal if they are victims of domestic violence by a U.S. citizen spouse. To be eligible, the person seeking cancellation cannot have a criminal conviction unless the crime was connected to the alien’s having been abused or subject to extreme cruelty. Is the statute broad enough to cover punching your husband’s mistress in the nose? Third Circuit: In this case, the husband’s repeated adultery was part of the extreme cruelty, and socking the mistress was connected to it. Removal canceled.
• Getaway driver for a string of five robberies is convicted of five counts of “aiding and abetting the use of a firearm during and in relation to a crime of violence” and one count of being a felon in possession, is sentenced to 124.5 years in prison (his co-defendant in the robberies, by contrast, has already completed his sentence). Defying all odds, he convinces the Supreme Court to vacate his sentence not once, but twice, requiring the Sixth Circuit to reconsider his sentence. Sixth Circuit: We got it right the first two times. An intervening change in the law that would have reduced his firearm charges to 35 years instead of 107 doesn’t apply retrospectively.
• The Speedy Trial Act requires the government to try a criminal defendant within 70 days or the case will be dismissed. All that’s required is that a defendant make a motion after the 70 days expire. Defendant: I objected after 86 days! Sixth Circuit: That’s 86 calendar days. But 18 of those days don’t count under the statute, so your objection was two days too early and the conviction stands. Concurrence: Besides that, merely objecting isn’t enough; you have to file a motion to dismiss (or at least you did until our Circuit rewrote the statute).
• Off-duty Kane County, Ill. deputy attends his child’s soccer game in neighboring DuPage County. Displeased with off-color language being bandied about on a nearby basketball court, the deputy confronts teenage basketballers, flashes his badge and gun, then physically assaults one of the players. Player wins a $110k default judgment against the deputy. Which cannot be collected from his Kane County employer, affirms the Seventh Circuit. “The fact that [the deputy] used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment.”
• Do Illinois state courts provide an adequate forum for adjudicating taxpayers’ Equal Protection claims? Seventh Circuit: Everyone agrees the taxpayers cannot raise their Equal Protection claims in state court. So no.
• Merrill, Wisc. man is caught with 143 kilos of marijuana, pleads guilty to possessing over 100 kilos. Yikes! He’s sentenced as if he possessed the equivalent of 4,679 kilos. Seventh Circuit: That finding rested on potentially unreliable statements by confidential informants. The trial court should have taken steps to determine whether the CIs were reliable. Eighteen-year sentence reversed and case remanded for resentencing.
• Arkansas prohibits anyone from donating money to a candidate running for state office more than two years before the election. Does the “blackout period” violate the First Amendment? Eighth Circuit: The preliminary injunction is upheld, and plaintiff can donate money while the case is pending.
• Arizona has a policy of wholly discarding ballots that are cast in the wrong precinct, rather than counting or partially counting those ballots. Arizona has also made it a crime to collect and deliver another person’s ballot. Violations of the Voting Rights Act? Ninth Circuit (en banc): Absolutely. The former has a discriminatory impact, and the latter was enacted with discriminatory intent. Dissents: It’s not unreasonable to regulate where voters can cast their ballots or who may handle absentee ballots.
• Arizona corrections officials settle health care class action, agree to comply with 103 “performance measures” designed to improve things. Was a district court justified in imposing contempt sanctions on the dep’t of corrections of $1k per incident of noncompliance? It was, says the Ninth Circuit. And with 1,445 such incidents (not to mention attorney’s fees), that’s a hefty chunk of change.
• Responding to a report of a domestic dispute, Sonoma County, Calif. deputies barge into man’s bedroom and find him alone, in bed, on his cell phone. Man declines to stand up and says he’s calling his lawyer. Deputy responds by tasing him in the chest. Ninth Circuit: No qualified immunity for the tasing deputy.
• Septuagenarian has a favorite fly fishing spot in the Arkansas River. Yikes! Nearby Cotopaxi, Colo. homeowners believe he’s trespassing on their property, which runs up to the centerline of the riverbed. Fisherman: The land is public land because it was navigable at Colorado’s statehood, which we know thanks to an early 19th-century beaver trapper and other accounts of commercial use from the time. Trial court: The fisherman doesn’t have standing. Tenth Circuit (over a dissent): Try again. (Click here for some local journalism.)
• And in en banc news, the Fifth Circuit (by an 8–8 vote) will not reconsider its decision allowing a Baton Rouge, La. police officer’s suit to proceed against a protest organizer. (The cert petition remains pending.) Nor will the Fifth Circuit revisit its decision deeming the individual mandate not a tax (on account of the tax being zero) and thus not a constitutional exercise of Congress’ taxing powers. (Relatedly, SCOTUS will not hustle along its consideration of the cert petitions.) Meanwhile, the Ninth Circuit will not reconsider its decision affirming the suppression of evidence on Crow land from a man an officer deemed non-Indian due to his physical appearance. A dissent castigates the decision, and a concurrence castigates the dissent. Spicy!
• And in Ohio Supreme Court action, a one-sentence, 307-word dissent: “I join Justice Lanzinger’s well-reasoned dissent, but write separately to highlight the General Assembly’s failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put.” (H/t: @Nonfinality)

Are you a law student? Are you on the East Coast? Do you want to learn how to turn an idea into a full-blown Supreme Court case or what the real difference between public interest law and private practice is? Then join the Institute for Justice at our second Legal Intensive—the premier one-day public interest law program. Students will be able to participate in IJ’s renowned student programming and get an inside look at our newest cases and cert petitions with IJ lawyers and staff. This event will be held in Arlington, Virginia on March 28, and we’d love to see you there! Click here to learn more and apply!

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• Tommy. CBS. Thursday, February 6, 10 p.m.
• Katy Keene. The CW. Thursday, February 6, 8 p.m.
• Indebted. NBC. Thursday, February 6, 9:30 p.m.

These days, Paul Attanasio is mainly known for writing extraordinarily literate movies and TV series like Quiz Show and Homicide: Life in the Streets. (Well, he does the self-descriptive Bull, too. For the sake of my paragraph construction, let’s ignore that one.)

But back in the day, when he was lead film critic for the Washington Post, Attanasio’s reputation was based more on his extraordinary ability to smooch the derriere of the industry he was covering. In 1986, a Washington literary group that called itself the Osric Dining Society—after Osric, the simpering courtier of Hamlet, labeled variously over the years by critics as “a vain and idle babbler” and “an airy, affected insect”—even gave Attanasio one of its awards honoring “flattery, deference and self-serving vacuity” for a profile he wrote of Meryl Streep. (“You feel that Meryl Streep, simply with her presence, is telling you the truth, not just about her life, but about your own.”) Told of his award, Attanasio asked if it came with a cash prize.

Certainly Attanasio isn’t going to get any prizes for butt-kissing for his newest series, CBS’ Tommy, a funny, horrifying, and generally thrilling account of a female Los Angeles police chief’s rocky relations with the city’s scummy, thieving (and, of course, male) power brokers. But Tommy may inspire an overdose of flowery flattery, not so much for Attanasio’s scripts—though they’re fine pieces of work—but for the show’s star, Edie Falco, making a welcome return to television as the harried, harassed and heroic Chief Abigail Thomas.

No television actress of the past two decades has been more important than Falco. As the morally troubled but hopelessly compromised mob wife of HBO’s The Sopranos and the dedicated nurse throwing her career, marriage and, eventually, life away for drugs on Showtime’s Nurse Jackie, Falco has created two of the most complicated, contradictory characters in television history.

It’s much too soon to know whether Chief Thomas—known to both friends and her plentiful foes as Tommy—will turn out to be as fatally flawed as Carmella Soprano or Nurse Jackie Payton. But she’s fascinatingly complex. A second-generation New York cop, Tommy’s career imploded when she broke the jaw of a Weinsteinian superior officer. She got the Los Angeles job in a hurried attempt to clean up the LAPD image after a massive sex scandal involving hookers, underage girls and a bunch of boss-underling affairs of dubious consensuality.

But the sexual profligacy in the police department was actually a mild problem compared to the entrenched political and financial corruption at city hall. And the pols there see Tommy’s ignorance of and indifference to the treacherous local political currents as a potential threat. Their moles infest the police department, where the old guard still dreams of a counterrevolution. It’s soon apparent that the new chief’s principal adversaries will not be criminals in the street but the ones in her own building.

Tommy has the toughness you’d expect from somebody who worked her way up from walking a beat in the Bronx. But she also has personal vulnerabilities: divorced, estranged from her adult daughter, and of questionable gender orientation—literally, in the view of the bosses at city hall; “Did you ask her about her sexuality?” one demands of the mayor. She’s old enough to be baffled by some of the tech toys popular with her younger officers and horrified by others—particularly some AI profiling software that, her intelligence officers boast, will soon enable them to arrest criminals who haven’t acted yet. And hence aren’t criminals. Whatever credibility she might have with her officers from her years on the street is erased by the fact that the street was in New York and not Los Angeles; she’s an outsider who’s still complaining that you can’t find good bagels or pizza in California. Yet she knows she has to shrug it all off.

Tommy‘s scripts are imaginative, using ripped-from-the-headlines stuff like #MeToo and immigration in unexpected ways. And the supporting cast—including Vladimir Caamaño (Superstore) as the chief’s amusingly wise-ass driver, Australian TV actress Adelaide Clemens as her unnervingly ambitious press spokeswoman, and veteran character actor David St. Louis as her cuckolded ex-husband (he produces a streaming cop drama about a zombie detective whose signature line is “You have the right to remain…dead!”)—is uniformly excellent.

But the straw stirring this flavorful drink is Falco, whose magnetism demands unflinching attention. Whether she’s dressing down a rogue cop who busted up an ICE raid, delicately tiptoeing a political high-wire in a tense conversation with the mayor, or even just eying her waistline with annoyance (preferred diet dinner: a plate of mashed potatoes and a bottle of sauvignon blanc), she radiates an obdurate refusal to surrender to anybody else’s agenda. Tommy may not share much with Carmella or Jackie, but all three of them could take life’s punches and throw them back. Bones will be broken in the process, and Falco’s not afraid of risking her own.

Elsewhere in sight as broadcast TV rolls out its winter season is Katy Keene, The CW’s latest addition from the Archie comic-book universe. Though a cousin of the network’s Riverdale (they share an executive producer, Roberto Aguirre-Sacasa), Katy Keene couldn’t be more different in tone. It’s no tour of the grim underbelly of suburbia, but an exuberantly roller-coaster if-you-can-make-it-there tale of young women taking on New York, sort of a Sex And The City prequel, minus the digressions into anal sex. (Although when the Katy Keene character started popping up in Archie comics in the 1940s, she was drawn to look like Bettie Page, so who knows what might happen in season five?)

Lucy Hale (Pretty Little Liars) plays cute-as-a-button Katy, who wants to be a fashion designer but pays the bills as a department-store personal shopper. Ashleigh Murray (Riverdale) plays cute-as-a-button Josie—yes, of the now-washed-up Josie & The Pussycats—who’s trying to make it in the music biz. Julia Chan (Saving Hope) plays cute-as-a-button Pepper Smith, a would-be It Girl who pops up in all the blogs despite lacking any discernible talent except a posh accent and, of course, being cute-as-a-button. And Jonny Beauchamp (Penny Dreadful) plays cute-as-a-gender-fluid button Jorge, whose dreams of Broadway have just been smashed by a director who didn’t think he could play butch. (“Apparently I’m too gay for Broadway!” Jorge anguishes. “Who even knew that was possible?”)

Katy Keene lasciviously rolls around in every threadbare cliché of showbiz melodrama and then some. For instance, here’s Josie’s first day in New York: She’s turned down for about 10,001 waitressing/barista/being-cute-as-a-button jobs, then gets discovered by a wildly rich and famous record producer while singing for a crowd of randos in Washington Square Park, cuts a fabulous demo, only to have it savagely rejected by a nasty corporate cabal led by the producer’s evil twin sister, and storms out swearing to quit the music business forever!

The song she’s singing while being discovered, by the way, is “Spanish Harlem,” a big hit in 1960 that’s played on Pandora and Spotify slightly less often than Gregorian chants. That’s just one of the weirdly anachronistic pop-culture references in a show about kids who, if they saw the Twin Towers going down on TV on Sept. 11, did so in diapers. Do Gen Z adults really say they want to be the next Diana Ross? And do music producers really interview potential artists by asking, “Shirelles or Ronettes?”

Peculiar tinge of American Bandstand-ism aside, there’s nothing really wrong with Katy Keene as long as you’re, say, 22, and don’t know all those clichés are not only clichés but have been for the past 90 years or so. The cast is affable (and, did I mention, cute as a button?) and melodrama, whatever you may say about it, has been entertaining people since the days when Osric was a character and not a literary society.

For a show that really ought to be horsewhipped, have a look at NBC’s alleged sitcom Indebted, which stars the animated corpses of Fran Drescher and Steven Weber as broke Baby Boomers who have to move back in with their son and his wife (Adam Pally, The Mindy Project, and Abby Elliott, Saturday Night Live). My only question after watching the pilot was, are they joking? And the answer was, no, not even once.

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Harvard law professor Alan Dershowitz, one of the attorneys representing Donald Trump in his Senate trial, complains that his critics are misrepresenting his position on quid pro quos and impeachment. “They have mischaracterized my argument as if I claimed that a president who believes his reelection is in the national interest can do anything,” Dershowitz writes in The Hill. “I said nothing like that.”

It is true that Dershowitz never said a president “can do anything” to get re-elected. He made it clear, for example, that a president who commits crimes to get re-elected—Richard Nixon, say—could be impeached. But Dershowitz’s comments during Wednesday’s question-and-answer session went further than he admits by implying that the desire to stay in office cannot count as a corrupt motive that renders otherwise legal conduct an impeachable abuse of power.

Here is the question to which Dershowitz was responding: “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?”

Dershowitz rightly responded that a quid pro quo involving a foreign government is not necessarily improper. If a president conditioned aid to Israel on a halt to settlement activity or conditioned aid to the Palestinian Authority on an end to payments for the families of terrorists, he said, “there is no one in this chamber who would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal.”

That last part is tautological, of course, and it elides the question of whether a president’s conduct can be impeachable even if it is not illegal. But Dershowitz conceded that the motive for a quid pro quo matters. “There are three possible motives that a political figure can have,” he said. “One, a motive in the public interest, and the Israel argument would be in the public interest; the second is in his own political interest; and the third, which hasn’t been mentioned, would be in his own financial interest, his own pure financial interest, just putting money in the bank.”

As an example of a quid pro quo motivated by personal financial interests, Dershowitz described “an easy case” in which “a hypothetical president” tells a foreign government, “Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds.” The motive in that situation, he said, “is purely corrupt and in the purely private interest.” Such a quid pro quo also would clearly violate the federal bribery statute that makes it a crime for a U.S. government official to solicit “anything of value…in return for…being influenced in the performance of any official act.”

By contrast, Dershowitz said, when a president offers a quid pro quo “in his own political interest,” that is “a complex middle case,” because the president might reason this way: “I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly.”

In his trial comments, his piece in The Hill, and his self-defense on Twitter, Dershowitz emphasized cases involving “mixed motives”: The president does something he believes is in the national interest while recognizing that it will also benefit him politically. Dershowitz warned that it would be dangerous for Congress to constantly parse the president’s motives in such situations with an eye toward impeaching him, since so many decisions fall into that category. “Everybody has mixed motives,” he told the senators, “and for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached.”

But the articles of impeachment do not allege that Trump had mixed motives when he pressured the Ukrainian government to announce an investigation of former Vice President Joe Biden. While Trump claims he was concerned about rooting out official corruption in Ukraine, the Democrats say, that is merely a post hoc cover for his true motive: discrediting the candidate he viewed as the biggest threat to his re-election. Dershowitz’s argument that a president might sincerely and legitimately equate his re-election with the national interest suggests that the Ukraine quid pro quo was perfectly proper even if Trump’s sole aim was tarring a political rival.

“Every public official whom I know believes that his election is in the public interest,” Dershowitz said. “Mostly, you are right. Your election is in the public interest. If a president does something which he believes will help him get elected—in the public interest—that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz implied that a quid pro quo can be impeachable only if it is “unlawful.” According to the Government Accountability Office, Trump’s freeze on military aid to Ukraine was unlawful, since it violated the Impoundment Control Act. And as George Mason law professor Ilya Somin has noted, Trump’s quid pro quo arguably violated a federal extortion statute. That law applies to someone who “knowingly causes or attempts to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…any payment or benefit of a program of the United States” if that payment or benefit “is provided for or made possible in whole or in part by an Act of Congress.”

While the articles of impeachment do not allege violations of these or any other laws, Dershowitz concedes that “criminal-like behavior akin to treason or bribery” is impeachable even if it’s not “a technical crime with all the elements.” Defending his position on Twitter yesterday, he again implied that impeachment does not require “unlawful” conduct. “A president seeking re-election cannot do anything he wants,” he said. “He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct.” The category of “impeachable conduct,” in other words, is broader than the category of “crimes.”

That means some abuses of presidential power, such as a pre-emptive self-pardon or politically motivated criminal investigations, can be grounds for impeachment even if they are technically legal. Motives matter. But if a politician’s desire to keep his job counts as a legitimate motive because he believes his re-election is “in the public interest,” noncriminal abuses of power aimed at avoiding electoral defeat can never be impeachable. That seems to be Dershowitz’s position, and it means that Congress has no authority to remove a president who abuses his powers so he can continue to exercise those powers.

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