Month: October 2021

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

New on the Short Circuit podcast: IJ attorneys Jeff Rowes and Diana Simpson talk judicial activism on Skid Row and insuring lost business income during the pandemic.

• Just in time for Spooky Season, the Second Circuit reanimates screenwriter Victor Miller’s copyright in the horror blockbuster Friday the 13th, holding that Miller was an independent contractor—not an employee—when he wrote The Long Night at Camp Blood, a script that has “since spawned eleven sequels, among other [extremely] derivative products.”
• For decades, Indian Health Service pediatrician sexually abuses his patients. Must the IHS turn over a report that details the agency’s numerous failures—in the pediatrician’s case and others—to the press? IHS: Nope, the report is a “medical quality assurance record” and so is exempt from the Freedom of Information Act. Second Circuit: Turn it over.
• Appellant: 16 years ago, the SEC refused to settle my civil-enforcement case unless I promised never to criticize them for prosecuting me. I agreed way back then, but now I want out. Second Circuit: Dammit, Jim, we’re an appeals court, not a time machine!
• Searcy, Ark. man is arrested for murder based on a warrant affidavit that included witness’s incriminating testimony, but not his later recantations. Eighth Circuit: No qualified immunity for three police officers. The prosecutor may have advised in drafting the affidavit, and the magistrate may have issued the warrant, but it was the officers who crafted and signed the “misleading” document.
• Allegation: Vancouver, Wash. police chief repeatedly investigates one of his officers to delay her promotion to sergeant. Officer: This was gender discrimination. Chief: Even if there’s proof I was motivated by her gender, she still has to identify similarly situated men I’ve treated differently. Ninth Circuit: The chief is “profoundly mistaken.” No QI.
• Douglas Adams’ fictional detective Dirk Gently believed in the “fundamental interconnectedness of all things.” So he would have loved this lawsuit by the City of Oakland, Calif. against Wells Fargo, alleging that its discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates, which in turn drove down the assess value of properties, which in turn led to reduced property-tax revenue and increased municipal expenditures. At the very least, he probably would have liked it more than the en banc Ninth Circuit, which takes a less holistic view of proximate causation.
• Environmental group sues Vacaville, Calif. because its drinking water contains hexavalent chromium (that stuff from the 2000 Julia Roberts blockbuster Erin Brockovich). Their theory? When you turn on the tap, that’s the city “transporting” “solid waste” that wood-treatment facilities buried in the ground 40–50 years ago. Ninth Circuit: Sounds like a valid cause of action. Dissent: It is not. And besides being wrong, Plaintiff waived this argument by not presenting it below.
• Nevada inmate is brought up on disciplinary charges for smuggling meth into prison in hidden compartments in envelopes. The inmate—who claims to have been framed—requests to inspect the envelopes, which is denied. He’s found guilty, delaying his consideration for parole by two years. Ninth Circuit: Which, if true, violated his clearly established rights under the Due Process Clause. Dissent: Well now it’s clearly established.
• Colorado man guilty of sexual assault faces two punishment possibilities: 24 years behind bars, or an indeterminate period lasting anywhere from one day to life. The court chose the latter. Man: I’ve now been imprisoned for over 37 years—give me a new hearing to keep confining me. Tenth Circuit: No. Dissent: This is a commitment, not a sentence, and commitments (whether civil or criminal) require hearings.
• In providing the Pulse nightclub shooter access to jihadist content, did Facebook, Twitter, and YouTube aid and abet international terrorism? Eleventh Circuit: No. It was neither international in scope (the shooter was radicalized and then acted in Florida), planned by ISIS (despite claiming credit afterward), so no international terrorism—and thus nothing to aid and abet—under the Anti-Terrorism Act.
• Alpharetta, Ga. is home to the Old Soldiers Day Parade, a gov’t funded event honoring “all war veterans … who have defended the right and freedoms enjoyed by everyone in the United States of America.” The Sons of Confederate Veterans asks to participate, a request that is granted so long as they do not fly the Confederate battle flag. They sue, alleging a First Amendment violation. Eleventh Circuit: The parade is government speech, and “governments are not obliged … to permit the presence of a rebellious army’s battle flag in the pro-veterans parades that they fund and organize.”

After a long battle with addiction, Rudy Carey completed rehab 14 years ago, turned his life around, and found his calling as a substance-abuse counselor. But in 2018, state officials told the Fredericksburg, Va. facility where he’d worked for five years that it was illegal for someone with his old criminal record to work as a substance-abuse counselor anywhere in the state. So this week, Rudy teamed up with IJ to challenge the state’s ban in federal court. Laws, at a minimum, must be rational. And barring well-qualified counselors like Rudy because of old and irrelevant offenses without regard to their present-day circumstances is anything but. Click here to learn more.

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Beginning this month, the United States Postal Service (USPS) is implementing “new” service standards and prices. That is to say, costs are going up and delivery times are getting longer.

In the halcyon days of September 2021, the postal service had promised to get all first-class mail and periodicals sent within the lower 48 states to their destinations in three days.

That three-day guarantee will be replaced by new distance-based standards. Mail traveling upwards of 930 miles will now be considered on time if it gets to its intended recipient within four days. Anything sent to destinations over 1,907 miles away will now have a five-day delivery target.

The USPS’ implementation of longer delivery times comes sandwiched between a pair of price increases as well.

In August, the postal service raised the cost of sending a first-class letter from $0.55 to $0.58. It also increased the cost of sending large “flats”—meaning larger envelopes, newsletters, and magazines—from $1 to $1.16. Starting October 3, the cost of sending packages will also increase from as little as $0.25 to as much as $5, depending on the distance it’s being sent and the level of service requested.

This is all part of Postmaster General Louis DeJoy’s 10-year Delivering for America business plan that is supposed to put the USPS on the path to “financial sustainability and service excellence.”

The price increases are obviously intended to bring in more revenue. Longer delivery times, meanwhile, will allow the USPS to save money by sending mail on its own (slower) trucks, and not on airplanes owned by its competitors. In addition, the postal service is deploying more package-sorting machines in the hopes of capturing a larger slice of the growing e-commerce market.

All these changes are supposed to eventually put the USPS back in the black after over a decade of running persistent deficits, and maintain its usefulness in a world where high-margin “flat” mail (the postal service’s traditional bread and butter) is becoming less and less relevant.

Nevertheless, the changes are upsetting some of the postal service’s most reliable customers.

“I have not seen a business model like [DeJoy’s], that promises worse service for higher prices, succeed,” Brett Wesner, a publisher of small-circulation newspapers in Oklahoma, Texas, and New Mexico, and chairman of the National Newspaper Association (NNA), told Reason earlier this year.

The NNA’s members include a lot of weekly periodicals for whom it doesn’t make sense to keep on a dedicated delivery staff. That means reliance on a postal service whose service standards were slipping even before the pandemic when on-time rates went off a cliff.

The USPS’ shift to package delivery would seem to make sense given how much retail shopping is moving online. It’s also a service that’s handled by a legion of private competitors.

“Do we really want the Postal Service to compete increasingly with the private sector? We do have private companies that deliver parcels—lots of them,” says Kevin Kosar, a postal scholar at the American Enterprise Institute.

The changes the USPS is making, and the reaction to them, shows the bind that the postal service finds itself in, which I wrote about in the cover story for Reason‘s August/September issue:

An overhaul intended to prioritize handling more packages would risk alienating the large customers most invested in the USPS’ flat mail services. Focusing on ever-declining paper mail would make the agency both less relevant to the public and more dependent on public subsidies.

Countries that don’t quite count as anarcho-capitalist utopias have had success with either privatizing their postal services or opening up mail delivery to private competition. Reason has been on board with this idea since its first year in print.

Turning over all postal deliveries to the free market still leaves some tricky questions about how to get things like jury summons and election ballots everywhere they need to go. A separation of stamp and state also isn’t politically practical, at least right now. No matter how much it has mistreated them, the public still loves its publicly-run postal service.

So, for the foreseeable future, it looks like we’re stuck with more expensive stamps, and longer wait times for mail.

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“[The police] asked me, are you knowingly going against Gavin Newsom’s orders? And I said, ‘Yes,'” says Annie Rammel, co-owner of the Oak and Elixir restaurant in the San Diego County beach town of Carlsbad, which was the site of mass disobedience of statewide lockdown orders in 2020.

On December 3, 2020, Gov. Gavin Newsom (D) ordered all California restaurants to stop serving customers in person and to convert their businesses to takeout only. It was the third shutdown order of the pandemic. Rammel had decided that enough was enough

“When the same person that’s telling you and restricting you from being open is going to a restaurant himself and eating inside, not six feet apart, it puts a little fire in you to say… this isn’t right,” Rammel tells Reason, referring to photos capturing Newsom dining indoors unmasked with lobbyists at the pricey French Laundry restaurant less than a month earlier.

“I’m going to stand up for my rights. I’m going to stand up for my business that I worked extremely hard to run and to have, and I’m going to stand up for the community.”

Rammel was skeptical of Newsom’s assurances that the latest order would only last a few weeks and began organizing resistance with other local business owners.

“I told restaurant owners, you’re not smart if you think this is only going to be three weeks. It’s definitely going to be months. And I was right.”

Rammel and other Carlsbad businesses formed a coalition that eventually numbered in the hundreds.

“We opened up, and it was crazy because [Carlsbad was] really the only city that was doing this outspokenly and telling the community, telling the news that we were going to stay open,” says Rammel. “And we were going to continue to be safe. We’re going to continue to wear masks and sanitize and six feet apart and do everything that we had been doing before. But that we were not going to close down.”

Rammel was issued a citation by San Diego’s public health department and by the state alcohol board, which threatened to revoke her liquor license.

But the county sheriff had decided not to enforce the governor’s order. The local police issued her a citation, but she says they apologized as they did so.

“They said, ‘We just want you to know that we don’t want to be doing this. We want you guys to survive this, sorry,’ as they’re handing me the paper,” says Rammel. 

Today, the coalition that defied the governor’s orders is suing Newsom and their state and local health departments to drop the fines and compensate them for losses incurred because of the shutdowns. The defendants in the case declined to comment for this story. Whoever prevails, the case could have implications for what the scope of executive power truly is in a state of emergency.

“Underground regulations facilitate arbitrary enforcement, and they undermine the rule of law,” says attorney Matt Harrison, who represents the San Diego County business owners. (Harrison is a former senior fellow at Reason Foundation, the nonprofit that publishes Reason and Reason TV.)

He says Newsom’s emergency orders didn’t follow the proper procedure for issuing new regulations.

“The most canonical, established application of due process is that the law needs to be clear enough so that a reasonable person can understand what’s prohibited,” says Harrison. 

Newsom’s Blueprint for a Safer Economy, released on August 28, 2020, laid out a color-coded tier system indicating which types of businesses were able to open and in what manner. Harrison says that this plan wasn’t legally binding because the governor didn’t follow the correct legal procedure: Regulations in California are required to be submitted to the secretary of state, who then makes them available for a public review process. Regulations also have to be accompanied by an explanation for why they’re justified.

“It’s the rules for the rule-makers, the regulations for the regulators,” says Harrison.

The state argues that the governor was able to circumvent this procedure because he was issuing emergency orders during a public health crisis.

This case is about whether due process exists in emergencies in the state. 

Rammel says that despite the governor’s mantra, the regulations didn’t follow the science with regard to COVID-19 spread.

“The restrictions didn’t make sense. We were keeping people safe. The numbers from restaurants, there was no proof that the outbreaks were coming from us,” says Rammel.

Rammel and the coalition lost the first round when a San Diego Superior Court judge dismissed the coalition’s lawsuit. The case is now before an appeals court.

Courts have recently demonstrated a willingness to strike down administrative actions that circumvent standard rule-making procedures. Several Trump administration actions were struck down, including one that would have added a census question about citizenship status, one that would have changed deportation procedures, and an executive order that would have allowed employers to opt out of certain birth control insurance coverage.

Rammel says the fines she still faces for refusing to follow the governor’s order amount to a couple of thousand dollars and don’t threaten her livelihood. But this isn’t a fight about money.

“I still feel like our rights are being tested, and that’s scary because we live in America where we’re supposed to be free, and we’re supposed to be able to have our rights and make the choice to be open…And I think that’s being threatened right now,” says Rammel.

Produced by Zach Weissmueller; camera by Dillon Mortensen; graphics by Isaac Reese

Photo credits: Jim Ruymen; Brian Feinzimer/Sipa USA/Newscom; Dean Musgrove/Zumapress/Newscom; Paul Kitagaki Jr./Zumapress/Newscom

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• CSI: Vegas. CBS. Wednesday, October 6, 10 p.m.
• Ghosts. CBS. Thursday, October 7, 9 p.m.

It’s October, so already network television is a grisly clutter of ghosts and phantasms and ambulating corpses. The most hideously unnerving of the bunch is CBS’ all-the-entrails-you-can-eat buffet CSI: Vegas—and not just for all the gloriously Technicolor viscera its stars toss around like liver-and-kidney-and-lung-flavored popcorn. If you’re thinking, hey, didn’t we already have a CSI set in Las Vegas, the answer is a dismal yes, and CBS necromancers have reanimated it, opening the very jaws of police procedural Hell upon us.

CSI: Crime Scene Investigation ran from 2000 to 2015, spawning four spinoffs and countless hours of incomprehensible toxicological jargon and retch-o-rama autopsy footage. TV cop dramas go back to the days of Highway Patrol and Dragnet (which was actually born as a radio series in 1949), so the hacky screenwriting and ventriloquist-dummy acting of CSI were hardly innovative. But the show’s open disdain for characterization was. A whole new term—police procedural—had to be invented for shows in which the stars were not actors but petri dishes.

CSI and its clones were eventually done in, like most of its clones, by the unholy invention of cable true-crime documentaries. By 2016, the last of its bastard progeny went to its unmarked Hollywood grave and there was hope for a television future. But word of its return has already aroused NBC, where another notorious procedural franchise, Law & Order, had wasted away from seven series to just one. Sure enough, the original Law & Order is now slated for a comeback, too. Cue the lightning, guys.

As for CSI: Vegas, it’s not much worse (and certainly not a bit better) than its creaky ancestor. Some of the characters, if you aren’t particularly discriminating in your use of the word, are back, including William Petersen as vicious-bug expert Gil Grissom, Jorja Fox as Sara Sidle, a Harvard chick with a thing for vicious-bug experts, and Paul Guilfoyle as Captain Jim Brass, a homicide supervisor so skilled that he got a rookie detective killed before the end of her first shift. The newcomers include Paula Newsome (Chicago Med), Matt Lauria (Parenthood) and Mandeep Dhillon (Star Wars: Episode IX), all scurrying around trying not to be mistaken for somebody else.

Otherwise, this CSI is indistinguishable from all the rest: The same spectacular camera zoom and splashy skyline photography. The same disturbing obsession with corpse porn. The same sawed-open ribcages, the same desiccated organs soaking in secret rehydration sauce, and the same dialogue that would gag a maggot. (One tech, gesturing at a filled-to-the-brim slop jar: “Is that stomach contents?” Second tech, nodding grimly: “Pomegranate—he was full of it.”)

But I did catch one revelatory quip after Newsome’s character pulled out a new device for illuminating rectums or some such. “Once upon a time,” murmurs another cop, “you’d have been burned as a witch.” CSI: Salem, coming soon!

The ghosts in the other new CBS offering, as the fall rollout of new broadcast shows continues into its fourth week, are literal. Also kinda easy to guess at since the name of the show is Ghosts. It concerns a young couple named Samantha (Rose McIver, iZombie) and Jay (Utkarsh Ambudkar, The Mindy Project), who inherit a country estate and make plans to turn it into a B&B. What they don’t know is that the place comes with a couple dozen ghosts, the spirits of previous residents, and only Samantha can see or hear them.

The generally unterrifying ghosts date from different epochs. They include a hippie (Sheila Carrasco, Jane the Virgin) who wandered over from a neighboring rock festival and tried to cuddle up to a bear, with inauspicious results. (“Drugs were involved,” she confesses needlessly. Then there’s a hulking Viking (Devan Long, Bosch) who has spent a good deal of his eternity delivering lectures to his fellow ghosts on the subtle differences between species of cod.  And a decapitated stockbroker (Asher Grodman, Succession) whose death goes unexplained but may have something to do with the three companies he was pushing: Enron, Circuit City, and Blockbuster. All these spirits have one special power related to the manner of their deaths, which in the case of an 18th century militia commander (Brandon Scott Jones, The Good Place) who died of dysentery, you don’t really want to hear much more about.

Adapted from a BBC sitcom of the same name (though nonetheless suspiciously similar to an early-’50s CBS haunted-house comedy called Topper), Ghosts is more cute than funny. Though it must be given credit (if that’s the right word) for breaking the broadcast-TV barrier on a particular euphemism for fellatio, which the ghosts use frequently without any awareness of its modern American significance. Now, on to the rusty trombone.

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